Texas Administrative Code Title 19

Education: As effective August 6, 2010

Chapter 89

Subchapter A

§89.1: Student Assessment

School districts shall develop written policies on student identification that are approved by the local board of trustees and disseminated to parents. The policies must:

(1) include provisions for ongoing screening and selection of students who perform or show potential for performing at remarkably high levels of accomplishment in the areas defined in the Texas Education Code, §29.121;

(2) include assessment measures collected from multiple sources according to each area defined in the Texas State Plan for the Education of Gifted/Talented Students;

(3) include data and procedures designed to ensure that students from all populations in the district have access to assessment and, if identified, services for the gifted/talented program;

(4) provide for final selection of students to be made by a committee of at least three local district educators who have received training in the nature and needs of gifted students; and

(5) include provisions regarding furloughs, reassessment, exiting of students from program services, transfer students, and appeals of district decisions regarding program placement.

Comments

Source Note: The provisions of this §89.1 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.2: Professional Development

School districts shall ensure that:

(1) prior to assignment in the program, teachers who provide instruction and services that are a part of the program for gifted students have a minimum of 30 hours of staff development that includes nature and needs of gifted/talented students, assessing student needs, and curriculum and instruction for gifted students;

(2) teachers without training required in paragraph (1) of this section who provide instruction and services that are part of the gifted/talented program must complete the 30-hour training requirement within one semester;

(3) teachers who provide instruction and services that are a part of the program for gifted students receive a minimum of six hours annually of professional development in gifted education; and

(4) administrators and counselors who have authority for program decisions have a minimum of six hours of professional development that includes nature and needs of gifted/talented students and program options.

Comments

Source Note: The provisions of this §89.2 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective February 13, 2000, 25 TexReg 776

§89.3: Student Services

School districts shall provide an array of learning opportunities for gifted/talented students in kindergarten through Grade 12 and shall inform parents of the opportunities. Options must include:

(1) instructional and organizational patterns that enable identified students to work together as a group, to work with other students, and to work independently;

(2) a continuum of learning experiences that leads to the development of advanced-level products and performances;

(3) in-school and, when possible, out-of-school options relevant to the student's area of strength that are available during the entire school year; and

(4) opportunities to accelerate in areas of strength.

Comments

Source Note: The provisions of this §89.3 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.4: Fiscal Responsibility

School districts shall ensure that: no more than 15% of state funds allocated for gifted/talented education are spent on indirect costs.

Comments

Source Note: The provisions of this §89.4 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.5: Program Accountability

School districts shall ensure that student assessment and services for gifted/talented students comply with accountability standards defined in the Texas State Plan for the Education of the Gifted/Talented.

Comments

Source Note: The provisions of this §89.5 adopted to be effective September 1, 1996, 21 TexReg 5690.

Subchapter B

§89.21: Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Adult education--Basic and secondary instruction and services for adults.

(A) Adult basic education--Instruction in reading, writing, English and solving quantitative problems, including functional context, designed for adults who:

(i) have minimal competence in reading, writing, and solving quantitative problems;

(ii) are not sufficiently competent to speak, read, or write the English language; or

(iii) are not sufficiently competent to meet the requirements of adult life in the United States, including employment commensurate with the adult's real ability.

(B) Adult secondary education--Comprehensive secondary instruction below the college credit level in reading, writing and literature, mathematics, science, and social studies, including functional context, and instruction for adults who do not have a high school diploma or its equivalent.

(2) Base allocation--An amount of funds set aside for each grantee to provide adult basic education services to eligible adults within its service area in compliance with provisions of the grant application and the state's federally-approved adult education plan.

(3) Contact time--The cumulative sum of minutes during which an eligible adult student receives instructional, counseling, and/or assessment services by a staff member supported by federal and state adult education funds as documented by local attendance and reporting records.

(A) Student contact time generated by volunteers may be accrued by the adult education program when volunteer services are verifiable by attendance and reporting records and volunteers meet requirements under §89.25 of this title (relating to Qualifications and Training of Staff).

(B) Student contact hour is 60 minutes.

(4) Cooperative/consortium adult education program--A community or area partnership of educational, work force development, human service entities, and other agencies that agree to collaborate for the provision of adult education and literacy services.

(5) Eligible grant recipient--Eligible grant recipients for adult education programs are those entities specified in state and federal law.

(6) Fiscal agent--The local entity that applies for, receives, and manages funds on behalf of the cooperative or adult education partnership.

(7) Grantee--Recipient of award of federal and/or state adult education funds from the Texas Education Agency.

(8) Performance definitions--

(A) Allocation--A performance allocation is an amount of funds set aside for each grantee from which it is eligible to withdraw funds once it has demonstrated that it has met or exceeded set performance targets.

(B) Payment--A performance payment is a financial incentive awarded to grantees based on the number of performance points earned by meeting or exceeding identified federal and state performance targets.

(C) Points--Performance points are the basis by which the grantee can earn performance payments. Performance points are earned by grantees by meeting or exceeding state and federal performance targets.

(D) Target--A performance target is a quantifiable measurement that identifies the degree or extent to which grantees are expected to achieve performance measures.

(i) Federal targets--A quantifiable measurement assigned to individual federal performance measures set forth in the Texas plan for adult education approved by the United States Department of Education (USDE).

(ii) State targets--A quantifiable measurement assigned to individual state performance measures set forth in the Texas plan for adult education approved by the USDE.

(9) Reallocation fund--Monies from grantee's performance allocations that grantees fail to earn because they did not achieve all federal performance targets that are placed in a fund to be distributed among grantees based on their performance on state performance measures.

Comments

Source Note: The provisions of this §89.21 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 1999, 24 TexReg 386; amended to be effective December 25, 2006, 31 TexReg 10297; amended to be effective July 1, 2010, 35 TexReg 5556

§89.22: Use of Funds

(a) Federal adult education and literacy funds may be used for programs of adult education and literacy for out-of-school individuals who have attained 16 years of age and:

(1) function at less than a secondary school completion level;

(2) lack a secondary school credential; or

(3) are unable to speak, read, or write in English.

(b) State adult education and literacy funds are to be used for programs of adult education and literacy for out-of-school individuals who are beyond compulsory school attendance age and:

(1) function at less than a secondary school completion level;

(2) lack a secondary school credential; or

(3) are unable to speak, read, or write in English.

(c) The proportion of students served who meet the requirements of subsection (a) of this section but do not meet the requirements of subsection (b) of this section may not exceed the grantee's percentage of federal funds to the total allocation.

Comments

Source Note: The provisions of this §89.22 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective July 1, 2010, 35 TexReg 5556

§89.23: Essential Program Components

The following essential program components shall be provided:

(1) adult basic education;

(2) programs for adults of limited English proficiency;

(3) adult secondary education, including programs leading to the achievement of a high school equivalency certificate and/or a high school diploma;

(4) instructional services to improve student proficiencies necessary to function effectively in adult life, including accessing further education, employment-related training, or employment;

(5) assessment and guidance services related to paragraphs (1)-(4) of this section; and

(6) collaboration with multiple partners in the community to expand the services available to adult learners and to prevent duplication of services.

Comments

Source Note: The provisions of this §89.23 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective July 1, 2010, 35 TexReg 5556

§89.24: Diploma Requirements

The standards for the awarding of diplomas to adults shall be those established under Chapter 74 of this title (relating to Curriculum Requirements) with the following exceptions.

(1) There shall be no limit to the number of secondary credits adults may earn by demonstration of competence.

(2) Adults may earn the required physical education credits by one or more of the following:

(A) satisfactory completion of approved secondary physical education courses; or

(B) substitution of state-approved secondary elective courses.

(3) Adults must meet the requirements for successful performance on a secondary level test designated by the commissioner of education.

Comments

Source Note: The provisions of this §89.24 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 1999, 24 TexReg 386

§89.25: Qualifications and Training of Staff

The requirements of this section shall apply to all adult education staff hired after September 1, 1996, excluding clerical and janitorial staff.

(1) All staff shall receive at least 12 clock hours of professional development annually.

(2) All staff new to adult education shall receive six clock hours of preservice professional development before they begin work in an adult education program.

(3) Aides shall have at least a high school diploma or high school equivalency certificate.

(4) The following apply to directors, teachers, counselors, and supervisors.

(A) Persons must possess at least a bachelor's degree.

(B) Persons without valid Texas teacher certification must attend 12 clock hours of inservice professional development annually in addition to that specified in paragraph (1) of this section until they have completed either six clock hours of adult education college credit or attained two years of adult education experience.

(5) The requirements for inservice professional development may be reduced by local programs in individual cases where exceptional circumstances prevent employees from completing the required hours of inservice professional development. Documentation shall be kept justifying such circumstances. Requests for exemption from staff qualification requirements in individual cases may be submitted to the Texas Education Agency (TEA) for approval in the application for funding and must include justification and proposed qualifications.

(6) Records of staff qualifications and professional development shall be maintained by each fiscal agent and must be available for monitoring.

(7) The requirements in paragraphs (1)-(5) of this section also apply to volunteers who generate student contact time, as defined under §89.21 of this title (relating to Definitions), which is accrued by the adult education program and reported to TEA for funding purposes.

Comments

Source Note: The provisions of this §89.25 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.26: Service Requirements for Staff

Teachers and aides shall be assigned to instruction, counseling, and/or assessment for a minimum of 75% of the hours for which they are employed.

Comments

Source Note: The provisions of this §89.26 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.27: Program Delivery System

(a) There shall be a statewide system of adult education cooperatives/consortia for the coordinated provision of adult education services. To the extent possible, service delivery areas shall be large enough to support a program meeting the requirements of §89.23 of this title (relating to Essential Program Components) and to ensure efficient and effective delivery of services.

(b) Eligible grant recipients may apply directly to the Texas Education Agency (TEA) for adult education and literacy funding. Eligible grant recipients are encouraged to maximize the fiscal resources available for service to undereducated adults and avoid unproductive duplication of services and excessive administrative costs by forming consortia or cooperatives and using fiscal agents for the delivery of services.

(c) Grant applicants who will serve as a fiscal agent for a cooperative/consortium must consult with other adult education and literacy providers in the cooperative/consortium in developing applications for funding to be submitted to TEA.

(d) Each fiscal agent shall be responsible for:

(1) the overall management of the cooperative/consortium, including technical assistance to consortium members, on-site visits, staff qualifications and professional development, and program implementation in accordance with the requirements of this subchapter;

(2) the employment of an administrator for the cooperative/consortium;

(3) development of written agreements with consortium members for the operation of the adult education program; and

(4) expenditures of funds for the conduct of the project and making and filing composite reports for the consortium.

(e) Nonconsortium applicants must also provide evidence of coordination of existing adult education and literacy services in the area proposed to be served and maintain an advisory committee.

Comments

Source Note: The provisions of this §89.27 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.28: Advisory Committee

At least one collaborative advisory committee shall be formed in each funded adult education service area. That committee shall be composed of a broad spectrum of community representatives, including work force development representatives, to review the activities of and make recommendations to the fiscal agent in planning, developing, and evaluating the adult education program. The fiscal agent shall be responsible for convening the collaborative advisory committee at least twice each year.

Comments

Source Note: The provisions of this §89.28 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective July 1, 2010, 35 TexReg 5556

§89.29: Allocation of Funds Prior to School Year 2010-2011

(a) The provisions of this section apply to the allocation of state and federal adult education funds prior to school year 2010-2011. Allocations beginning with school year 2010-2011 shall be in accordance with provisions established in §89.30 of this title (relating to Allocation of Funds Beginning with School Year 2010-2011) and §89.31 of this title (relating to Payment of Funds).

(b) Annually, after federal adult education and literacy funds have been set aside for state administration, special projects and staff development, state and federal adult education fund allocations shall be developed for each county and each school district geographic area. Allocations shall be computed as follows.

(1) Twenty-five percent of the funds available shall be allocated based on the best available estimates of the number of eligible adults in each county and school district geographic area within each county.

(2) Seventy-five percent of the funds available shall be allocated based on student contact hours reported by each school district geographic area and for the most recent complete fiscal year reporting period.

(3) A school district geographic area's student contact hour annual allocation shall not be reduced by more than 10% below the preceding fiscal year's contact hour allocation provided that:

(A) sufficient funds are available; and

(B) the school district geographic area's contact hour performance used in calculating the allocation was not less than that of the preceding fiscal year.

(4) If public funds, other than state and federal adult education funds, are used in the adult education instructional program, the program may claim only the proportionate share of the student contact time based on the adult education program's expenditures for the instructional program.

Comments

Source Note: The provisions of this §89.29 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective December 25, 2006, 31 TexReg 10297; amended to be effective July 1, 2010, 35 TexReg 5556

§89.30: Allocation of Funds Beginning with School Year 2010-2011

(a) Allocation of state and federal funds. The provisions of this section apply to the allocation of state and federal adult education funds beginning with school year 2010-2011. Annually, after federal adult education and literacy funds have been set aside for state administration, special projects, staff development, and leadership, state and federal adult education funds shall be allocated based upon grantees':

(1) funding received in the second year of the previous biennium; and

(2) proportionate share of need.

(b) Total grantee allocation. Each grantee's total shall be comprised of the following components:

(1) base allocation; and

(2) performance allocation.

(c) Calculation of base allocation. Each grantee will receive a base allocation equal to the amount of funding it received in the second year of the previous biennium, provided that:

(1) the grantee serves, at a minimum, the same or equivalent school district geographic areas as it served in the second year of the previous biennium; and

(2) the total amount of federal and state funds available statewide is equal to or greater than the amount available in the second year of the previous biennium.

(d) Reduction of base allocation. If the calculation of the base allocation results in a total that is greater than the state and federal funds available, each grantee's base allocation shall be reduced proportionately.

(e) Calculation of performance allocation. The sum of all grantees' base allocations, which are calculated based on subsection (c) of this section, will be subtracted from the total amount of federal and state funds available, excluding the amount of federal funds set aside for state administration, special projects, staff development, and leadership. The remainder then will be allocated among all grantees based upon need and will be designated as each grantee's performance allocation.

Comments

Source Note: The provisions of this §89.30 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.31: Payment of Funds

(a) Base payments. Each grantee will receive its base allocation as calculated in accordance with §89.30(c) of this title (relating to Allocation of Funds Beginning with School Year 2010-2011).

(b) Performance payments. Each grantee may earn performance payments from:

(1) its performance allocation as calculated in accordance with §89.30(e) of this title by achieving federal performance targets; and

(2) the reallocation fund by achieving state performance targets.

(c) Earning payments from a grantee's performance allocation. Each grantee is eligible to earn performance payments from its performance allocation by meeting or exceeding federal performance targets.

(1) For each federal performance target that the grantee meets or exceeds, the grantee will earn:

(A) one and one-half performance points for meeting or exceeding a target that advances students from the lowest literacy level for either adult basic education or English as a second language to the next literacy level; and

(B) one performance point for meeting or exceeding all other targets.

(2) The amount of funds that each grantee will receive from its performance allocation is calculated by adding the number of performance points the grantee earned and dividing it by the total number of performance points possible to earn and multiplying that number by 100. The resulting percentage of possible points earned is then multiplied by the amount of funds set aside in the grantee's performance allocation.

(3) The amount of funds in each grantee's performance allocation that are not earned will be placed in a statewide reallocation fund.

(d) Earning payments from the reallocation fund. All grantees, regardless of performance on the federal performance measures, will be eligible to earn funds from the reallocation fund by meeting or exceeding state performance targets for state performance measures.

(1) For each state performance target that a grantee meets or exceeds, the grantee will earn:

(A) one and one-half performance points for meeting or exceeding a target that advances students from the lowest literacy level for either adult basic education or English as a second language to the next literacy level; and

(B) one performance point for meeting or exceeding all other targets.

(2) The total number of performance points earned by all grantees will be summed and divided into the total amount of funds in the reallocation fund to determine a cost per state performance point earned.

(3) The amount of funds that each grantee will receive from the reallocation fund is calculated by adding the number of performance points the grantee earned for meeting or exceeding state performance targets and multiplying that number by the cost per state performance point earned.

Comments

Source Note: The provisions of this §89.31 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.32: Match Requirements

(a) Service providers shall provide and document any cash or in-kind match. The match must be met using non-federal (i.e., local or state) sources.

(b) The cash or in-kind match may be obtained from any state or local source that is fairly evaluated, excluding any sources of federal funds.

(c) The match may include allowable costs such as the following:

(1) goods and services;

(2) fair market value of third-party goods and services donated by volunteers and employees or other organizations; and

(3) supplies, equipment, and building space not owned by the fiscal agent.

(d) The grantee is required to maintain auditable records for all expenditures relating to the cash or in-kind match the same as for the funds granted through an approved application.

(e) If public funds, other than state and federal adult education funds, are used in the adult education instructional program, the program may claim a proportionate share of the student contact time as the cash or in-kind match.

Comments

Source Note: The provisions of this §89.32 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.33: Tuition and Fees

(a) No student tuition or fees shall be charged for adult basic education as a condition for membership and participation in a class.

(b) Tuition and fees for adult secondary education may be charged and be established by local fiscal agent board policy. Funds generated by such tuition and fees shall be used for the adult education instructional program.

Comments

Source Note: The provisions of this §89.33 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.34: Other Provisions

(a) Allowable and nonallowable expenditures. Supervisory and administrative costs shall not exceed 25% of the total budget. These costs may include supervisory payroll costs, rental of administrative space, indirect costs, and clerical costs.

(b) Staff development and special projects.

(1) Priorities for expenditures of federal funds as required by the Workforce Investment Act, §223, shall be presented annually to the State Board of Education.

(2) From the federal funds set aside for state administration, special projects, staff development, and leadership, a portion of funds shall be used to provide training and professional development to organizations that are not currently receiving grants but are providing literacy services.

(c) Evaluation of programs. The Texas Education Agency shall evaluate adult education programs based on the indicators of program quality for adult education.

Comments

Source Note: The provisions of this §89.34 adopted to be effective July 1, 2010, 35 TexReg 5556

§89.35: Revocation and Recovery of Funds

(a) The commissioner of education may revoke a grant award for the adult education grant program based on the following factors:

(1) noncompliance with application assurances and/or the provisions of this section;

(2) lack of program success as evidenced by progress reports and program data;

(3) failure to participate in data collection and audits;

(4) failure to meet performance standards specified in the application or in the Texas state plan for adult education approved by the U.S. Department of Education; or

(5) failure to provide accurate, timely, and complete information as required by the Texas Education (TEA) to evaluate the effectiveness of the adult education program.

(b) A decision by the commissioner and the TEA to revoke the grant award of an adult education program is final and may not be appealed.

(c) The commissioner may audit the use of grant funds and may recover funds against any state provided funds.

Comments

Source Note: The provisions of this §89.35 adopted to be effective July 1, 2010, 35 TexReg 5556

Subchapter C

§89.41: Policy

The Texas Education Agency (TEA) shall be the only agency in Texas authorized to issue a certificate of high school equivalency on the basis of the General Educational Development (GED) Tests. Tests shall be administered by authorized contracted testing centers under applicable state law and rules of the American Council on Education and the State Board of Education (SBOE).

Comments

Source Note: The provisions of this §89.41 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.42: Official Testing Centers

(a) When authorized by the Texas Education Agency (TEA), official testing centers shall be established by annual contract with an accredited school district, institution of higher learning, or education service center (ESC). The testing center must be located at a high school in an accredited district, an accredited institution of higher learning, or ESC. The chief administrative officer of a school, institution of higher learning, or ESC desiring to provide the General Educational Development (GED) testing service to residents in the community must request authorization to do so from TEA. If the need for a testing center in the location exists, the appropriate agency official, in writing, shall inform the American Council on Education that the establishment of an official testing center is authorized at that particular institution. The center shall be sent an annual contract, together with order forms and other material, relating to the operation of the testing center. The contract forms must be signed by the chief administrative officer of the school, institution of higher learning, or ESC, and the chief examiner.

(b) The chief administrative officer of the school, institution of higher learning, or ESC at which an official testing center is established must agree to provide appropriate storage for restricted test materials and to provide a suitable place for administering the test. Each center is responsible for selecting and ordering test materials.

(c) The administrative officer of a school district or ESC must designate a certified counselor, and the administrative officer of an institution of higher learning must designate a professional person with a master's degree with a background in teaching, training, testing, or counseling, to serve as chief examiner. The person designated as chief examiner shall not be involved in preparing persons for the examinations. The chief administrative officer must obtain prior authorization from TEA to change the chief examiner or the location of a testing center. The person designated as chief examiner must attend annual training conducted by TEA.

(d) A testing center may transport restricted test material to correctional facilities, health facilities, or schools if authorization to do so has been obtained. The chief administrative officer of an institution housing an official testing center and the administrator of the correctional facility, health facility, or school must request authorization to provide the testing services from TEA. Only the exact number of tests plus one needed at a test session may be transported to the addendum site. Testing services at correctional or health facilities shall be limited to inmates or patients of the facility, and the tests must be administered by an employee of the school district, institution of higher learning, or ESC housing the test center. To maintain the integrity of the test, a complete inventory of all secure testing materials shall be conducted:

(1) before leaving the official GED testing center;

(2) upon arrival at the addendum site;

(3) immediately before and after the test administration;

(4) before departure from the addendum site; and

(5) upon return to the official GED testing center.

(e) The authorization to function as an official testing center may be withdrawn by TEA when a center has failed to maintain the integrity of the testing program. The TEA may suspend testing at a center if restricted test material is reported missing or if conditions reported by the TEA site visit indicate that the testing center is in violation of State Board of Education (SBOE) rules or requirements of the American Council on Education.

(f) An official testing center may charge a fee for test administration. The amount of the fee shall be determined by the administration or board of the school district, institution of higher learning, or ESC.

(g) The administration or board of an institution housing an official testing center shall have a written policy concerning the operation of the center, a written emergency plan, and a testing schedule. Each official testing center must provide the following assurances to the GED Testing Service:

(1) appropriate resources;

(2) suitable physical facilities;

(3) adequate staffing;

(4) full testing support services;

(5) cooperation with the GEDTS;

(6) financial management; and

(7) test security.

Comments

Source Note: The provisions of this §89.42 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective October 15, 2006, 31 TexReg 8361

§89.43: Eligibility for a Texas Certificate of High School Equivalency

(a) An applicant for a certificate of high school equivalency shall meet the following requirements.

(1) Residence. The applicant must be a resident of Texas or a member of the United States armed forces stationed at a Texas installation.

(2) Age.

(A) The applicant must be 18 years old.

(B) An applicant who is 17 years of age is eligible with parental or guardian consent. An applicant who is 17 years of age must present written permission signed by the applicant's parent or guardian. An applicant who is 17 years of age and married, who has entered military service, who has been declared an adult by the court, or who has otherwise legally severed the child/parent relationship is not required to present parent or guardian permission to be tested.

(C) An applicant who is at least 16 years of age may test if recommended by a public agency having supervision or custody under a court order. Recommendations must include the applicant's name and date of birth and must be signed by an official of the public agency having supervision or custody of the person under a court order. An applicant who is at least 16 years old may also test if:

(i) required to take the examination under a justice or municipal court order issued under the Code of Criminal Procedure, Article 45.054(a)(1)(C) (formerly codified as Family Code, §54.021(d)(1)(B));

(ii) enrolled in a Job Corps training program under the Workforce Investment Act of 1998 (29 United States Code, §§2801 et seq.) and its subsequent amendments; or

(iii) enrolled in the adjutant general's department's Seaborne ChalleNGe Corps.

(3) Educational status. The applicant must not have received a high school diploma from an accredited high school in the United States. The applicant must not be enrolled in school, unless the applicant is enrolled in a High School Equivalency Program (HSEP) approved by the Texas Education Agency (TEA). A student who is 17 years of age is eligible to test if the student is enrolled in an HSEP approved by the TEA. The student must comply with the provisions of the HSEP.

(4) Minimum test scores. An applicant must achieve the appropriate minimum standard scores in effect at the time the applicant tested as established by the American Council on Education's General Educational Development Testing Service.

(b) Test centers shall verify that any person being tested meets the eligibility requirements in this section.

Comments

Source Note: The provisions of this §89.43 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 1999, 24 TexReg 386; amended to be effective April 18, 2002, 27 TexReg 3061; amended to be effective October 15, 2006, 31 TexReg 8361

§89.44: Identification

Test centers shall require each examinee to present a driver's license or Texas Department of Public Safety (DPS) identification card, or a government issued identification card (both national and foreign), provided that the identification includes date of birth, photograph, address, and signature. The examinee must also meet the age, residency, and other requirements of this chapter.

Comments

Source Note: The provisions of this §89.44 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective April 18, 2002, 27 TexReg 3061

§89.45: Retesting

An examinee who fails to achieve a minimum passing score on one or more of the tests may retest on the tests he or she failed, except for instances in which the American Council on Education establishes that scores may not be combined across a General Educational Development test series, in which case the examinee must successfully complete the full battery of tests in a series. A person desiring to retest must wait six months to do so unless he or she presents a letter from an adult preparation program or a certified teacher verifying that the individual is prepared to retest. Each retest must be on a different form of the test.

Comments

Source Note: The provisions of this §89.45 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective April 18, 2002, 27 TexReg 3061

§89.46: Examinees with Disabilities

(a) A physically disabled person who is unable to mark an answer sheet may be assisted by the chief examiner or proctor. The examinee must read the questions without assistance and indicate the answer for the proctor to mark.

(b) A severely handicapped or ill person who cannot travel to the test center may be administered the tests at home. Prior approval to transport the tests shall be requested of the Texas Education Agency (TEA) by the chief examiner.

(c) An applicant who is unable to take the printed form of the test may be administered a taped version of the test upon written authorization of TEA. A request by the chief examiner must be accompanied by certification by a physician that verifies a medical diagnosis of the disability that renders the potential examinee unable to take the printed form of the test.

(d) An applicant who is visually handicapped may take the test in a Braille, large print, or taped version. Versions of the test in these forms are available from the General Educational Development Testing Service.

Comments

Source Note: The provisions of this §89.46 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective April 18, 2002, 27 TexReg 3061

§89.47: Issuance of the Certificate

(a) Test scores shall be accepted as official only when reported directly by official testing centers, the Defense Activity for Nontraditional Education Support, directors of Veterans Administration hospitals, and, in special cases, by the General Educational Development Testing Service (GEDTS).

(b) Following review for eligibility and approval, certificates will be issued directly to clients. A nonrefundable fee of $15 will be assessed for issuance of a certificate and a copy of test scores. A permanent file shall be maintained for all certificates issued.

(c) Duplicate certificates will be issued upon request from the client. The client is required to pay a nonrefundable fee of $5.00 for each request for a duplicate certificate.

(d) The certificate of high school equivalency shall indicate the version of the test taken by the applicant: audiotape, large print, Braille, English, French, or Spanish.

(e) The state General Educational Development (GED) administrator may disapprove issuance of a certificate or may cancel a certificate under the following conditions:

(1) an applicant does not meet eligibility requirements under §89.43 of this title (relating to Eligibility for a Texas Certificate of High School Equivalency);

(2) the applicant in any way violates security of the restricted test material;

(3) the applicant presents fraudulent identification or is not who he or she purports to be;

(4) the applicant uses another person's certificate or test scores in an attempt to defraud; or

(5) the applicant willingly allows another person to use his or her certificate or test scores in an attempt to defraud.

(f) In the case of nonissuance or cancellation of a certificate, the applicant shall be notified in writing by the GED administrator that the certificate will not be issued or may be canceled.

(g) An applicant who has been notified that his or her certificate will not be issued or may be canceled may appeal to the state GED administrator within 30 days of receiving written notification.

(h) If, after further review, the state GED administrator does not approve issuance of the certificate or cancels a certificate, this decision may be appealed to the commissioner of education under Chapter 157 of this title (relating to Hearings and Appeals).

Comments

Source Note: The provisions of this §89.47 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 1999, 24 TexReg 386; amended to be effective April 18, 2002, 27 TexReg 3061; amended to be effective June 6, 2004, 29 TexReg 5343; amended to be effective October 15, 2006, 31 TexReg 8361

§89.48: State Administrator

The commissioner of education shall designate the state administrator of General Educational Development (GED) testing and the certificate of high school equivalency program.

Comments

Source Note: The provisions of this §89.48 adopted to be effective September 1, 1996, 21 TexReg 5690.

Subchapter D

§89.61: Contracting for Residential Educational Placements for Students with Disabilities

(a) Residential placement. A school district may contract for residential placement of a student when the student's admission, review, and dismissal (ARD) committee determines that a residential placement is necessary in order for the student to receive a free appropriate public education (FAPE).

(1) A school district may contract for a residential placement of a student only with either public or private residential facilities which maintain current and valid licensure by the Texas Department of Mental Health and Mental Retardation, Texas Department of Human Services, Texas Department of Health, Texas Department of Protective and Regulatory Services, or Texas Council on Alcohol and Drug Abuse for the particular disabling condition and age of the student. A school district may contract for an out-of-state residential placement in accordance with the provisions of subsection (c)(3) of this section.

(2) Subject to subsections (b) and (c) of this section, the district may contract with a residential facility to provide some or all of the special education services listed in the contracted student's individualized education program (IEP). If the facility provides any educational services listed in the student's IEP, the facility's education program must be approved by the commissioner of education in accordance with subsection (c) of this section.

(3) A school district which intends to contract for residential placement of a student with a residential facility under this section shall notify the Texas Education Agency (TEA) of its intent to contract for the residential placement through the residential application process described in subsection (b) of this section.

(4) The school district has the following responsibilities when making a residential placement.

(A) Before the school district places a student with a disability in, or refers a student to, a residential facility, the district shall initiate and conduct a meeting of the student's ARD committee to develop an IEP for the student in accordance with 34 Code of Federal Regulations, §§300.342-300.347, state statutes, and commissioner of education rules.

(B) For each student, the services which the school district is unable to provide and which the facility will provide shall be listed in the student's IEP.

(C) For each student, the ARD committee shall establish, in writing, criteria and estimated timelines for the student's return to the school district.

(D) The appropriateness of the facility for each student residentially placed shall be documented in the IEP. General screening by a regional education service center is not sufficient to meet the requirements of this subsection.

(E) The school district shall make an initial and an annual on-site visit to verify that the residential facility can, and will, provide the services listed in the student's IEP which the facility has agreed to provide to the student.

(F) For each student placed in a residential facility (both initial and continuing placements), the school district shall verify, during the initial residential placement ARD committee meeting and each subsequent annual ARD committee meeting, that:

(i) the facility meets minimum standards for health and safety;

(ii) residential placement is needed and is documented in the IEP; and

(iii) the educational program provided at the residential facility is appropriate and the placement is the least restrictive environment for the student.

(G) The placement of more than one student, in the same residential facility, may be considered in the same on-site visit to a facility; however, the IEP of each student must be individually reviewed and a determination of appropriateness of placement and service must be made for each student.

(H) When a student who is residentially placed by a school district changes his residence to another Texas school district, and the student continues in the contracted placement, the school district which negotiated the contract shall be responsible for the residential contract for the remainder of the school year.

(b) Application approval process. Requests for approval of state and federal funding for residentially placed students shall be negotiated on an individual student basis through a residential application submitted by the school district to the TEA.

(1) A residential application may be submitted for educational purposes only. The residential application shall not be approved if the application indicates that the:

(A) placement is due primarily to the student's medical problems;

(B) placement is due primarily to problems in the student's home;

(C) district does not have a plan, including timelines and criteria, for the student's return to the local school program;

(D) district did not attempt to implement lesser restrictive placements prior to residential placement (except in emergency situations as documented by the student's ARD committee);

(E) placement is not cost effective when compared with other alternative placements; and/or

(F) residential facility provides unfundable/unapprovable services.

(2) The residential placement, if approved by the TEA, shall be funded as follows:

(A) the education cost of residential contracts shall be funded with state funds on the same basis as nonpublic day school contract costs according to Texas Education Code, §42.151;

(B) related services and residential costs for residential contract students shall be funded from a combination of fund sources. After expending any other available funds, the district must expend its local tax share per average daily attendance and 25% of its Individuals with Disabilities Education Act, Part B, (IDEA-B) formula tentative entitlement (or an equivalent amount of state and/or local funds) for related services and residential costs. If this is not sufficient to cover all costs of the residential placement, the district through the residential application process may receive additional IDEA-B discretionary funds to pay the balance of the residential contract placement(s) costs; and

(C) funds generated by the formula for residential costs described in subsection (b)(2)(B) of this section shall not exceed the daily rate recommended by the Texas Department of Protective and Regulatory Services for the specific level of care in which the student is placed.

(c) Approval of the education program for facilities which provide educational services. Residential facilities which provide educational services must have their educational programs approved for contracting purposes by the commissioner of education.

(1) If the education program of a residential facility which is not approved by the commissioner of education is being considered for a residential placement by a local school district, the school district should notify the TEA in writing of its intent to place a student at the facility. The TEA shall begin approval procedures and conduct an on-site visit to the facility within 30 calendar days after the TEA has been notified by the local school district. Approval of the education program of a residential facility may be for one, two, or three years.

(2) The commissioner of education shall renew approvals and issue new approvals only for those facilities which have contract students already placed or which have a pending request for residential placement from a school district. This approval does not apply to residential facilities which only provide related services or residential facilities in which the local accredited school district where the facility is located provides the educational program.

(3) School districts which contract for out-of-state residential placement shall do so in accordance with the rules for in-state residential placement in this section, except that the facility must be approved by the appropriate agency in the state in which the facility is located, rather than by the commissioner of education in Texas.

Comments

Source Note: The provisions of this §89.61 adopted to be effective September 1, 2000, 25 TexReg 4529

§89.62: Support of Students Enrolled in the Texas School for the Blind and Visually Impaired and Texas School for the Deaf

(a) For each student enrolled in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf, the school district responsible for providing appropriate special education and related services to the student shall share the cost of the student's education (excluding the summer programs) as provided under the Texas Education Code, §30.003.

(1) The information required in accordance with the Texas Education Code, §30.003(d), must be submitted in a form prescribed by the commissioner of education within 30 calendar days after the student enrolls in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf.

(2) School districts required to remit their shares to the Texas Education Agency in accordance with the Texas Education Code, §30.003(d), shall do so within 60 days of notification by the commissioner of education.

(b) School districts shall provide, annually, in writing to each parent or legal guardian of an eligible student with visual or auditory impairments, the information specified in the Texas Education Code, §30.004(a)(1)-(3), before considering the student's placement for special education services.

Comments

Source Note: The provisions of this §89.62 adopted to be effective September 1, 1996, 21 TexReg 5690.

§89.63: Instructional Arrangements and Settings

(a) Each local school district shall be able to provide services with special education personnel to students with disabilities in order to meet the special needs of those students in accordance with 34 Code of Federal Regulations, §§300.550-300.554.

(b) Subject to §89.1075(e) of this title (relating to General Program Requirements and Local District Procedures) for the purpose of determining the student's instructional arrangement/setting, the regular school day is defined as the period of time determined appropriate by the admission, review, and dismissal (ARD) committee.

(c) Instructional arrangements/settings shall be based on the individual needs and individualized education programs (IEPs) of eligible students receiving special education services and shall include the following.

(1) Mainstream. This instructional arrangement/setting is for providing special education and related services to a student in the regular classroom in accordance with the student's IEP. Qualified special education personnel must be involved in the implementation of the student's IEP through the provision of direct, indirect and/or support services to the student, and/or the student's regular classroom teacher(s) necessary to enrich the regular classroom and enable student success. The student's IEP must specify the services that will be provided by qualified special education personnel to enable the student to appropriately progress in the general education curriculum and/or appropriately advance in achieving the goals set out in the student's IEP. Examples of services provided in this instructional arrangement include, but are not limited to, direct instruction, helping teacher, team teaching, co-teaching, interpreter, education aides, curricular or instructional modifications/accommodations, special materials/equipment, consultation with the student and his/her regular classroom teacher(s) regarding the student's progress in regular education classes, staff development, and reduction of ratio of students to instructional staff.

(2) Homebound. This instructional arrangement/setting is for providing special education and related services to students who are served at home or hospital bedside.

(A) Students served on a homebound or hospital bedside basis are expected to be confined for a minimum of four consecutive weeks as documented by a physician licensed to practice in the United States. Homebound or hospital bedside instruction may, as provided by local district policy, also be provided to chronically ill students who are expected to be confined for any period of time totaling at least four weeks throughout the school year as documented by a physician licensed to practice in the United States. The student's ARD committee shall determine the amount of services to be provided to the student in this instructional arrangement/setting in accordance with federal and state laws, rules, and regulations, including the provisions specified in subsection (b) of this section.

(B) Home instruction may also be used for services to infants and toddlers (birth through age 2) and young children (ages 3-5) when determined appropriate by the child's individualized family services plan (IFSP) committee or ARD committee. This arrangement/setting also applies to school districts described in Texas Education Code, §29.014.

(3) Hospital class. This instructional arrangement/setting is for providing special education instruction in a classroom, in a hospital facility, or a residential care and treatment facility not operated by the school district. If the students residing in the facility are provided special education services outside the facility, they are considered to be served in the instructional arrangement in which they are placed and are not to be considered as in a hospital class.

(4) Speech therapy. This instructional arrangement/setting is for providing speech therapy services whether in a regular education classroom or in a setting other than a regular education classroom. When the only special education or related service provided to a student is speech therapy, then this instructional arrangement may not be combined with any other instructional arrangement.

(5) Resource room/services. This instructional arrangement/setting is for providing special education and related services to a student in a setting other than regular education for less than 50% of the regular school day.

(6) Self-contained (mild, moderate, or severe) regular campus. This instructional arrangement/setting is for providing special education and related services to a student who is in a self-contained program for 50% or more of the regular school day on a regular school campus.

(7) Off home campus. This instructional arrangement/setting is for providing special education and related services to the following, including students at South Texas Independent School District and Windham Independent School District:

(A) a student who is one of a group of students from more than one school district served in a single location when a free appropriate public education is not available in the respective sending district;

(B) a student whose instruction is provided by school district personnel in a facility (other than a nonpublic day school) not operated by a school district; or

(C) a student in a self-contained program at a separate campus operated by the school district that provides only special education and related services.

(8) Nonpublic day school. This instructional arrangement/setting is for providing special education and related services to students through a contractual agreement with a nonpublic school for special education.

(9) Vocational adjustment class/program. This instructional arrangement/setting is for providing special education and related services to a student who is placed on a job with regularly scheduled direct involvement by special education personnel in the implementation of the student's IEP. This instructional arrangement/setting shall be used in conjunction with the student's individual transition plan and only after the school district's career and technology classes have been considered and determined inappropriate for the student.

(10) Residential care and treatment facility (not school district resident). This instructional arrangement/setting is for providing special education instruction and related services to students who reside in care and treatment facilities and whose parents do not reside within the boundaries of the school district providing educational services to the students. In order to be considered in this arrangement, the services must be provided on a school district campus. If the instruction is provided at the facility, rather than on a school district campus, the instructional arrangement is considered to be the hospital class arrangement/setting rather than this instructional arrangement. Students with disabilities who reside in these facilities may be included in the average daily attendance of the district in the same way as all other students receiving special education.

(11) State school for persons with mental retardation. This instructional arrangement/setting is for providing special education and related services to a student who resides at a state school when the services are provided at the state school location. If services are provided on a local school district campus, the student is considered to be served in the residential care and treatment facility arrangement/setting.

(d) The appropriate instructional arrangement for students from birth through the age of two with visual and/or auditory impairments shall be determined in accordance with the IFSP, current attendance guidelines, and the agreement memorandum between the Texas Education Agency (TEA) and the Texas Interagency Council on Early Childhood Intervention.

(e) For nonpublic day school placements, the school district or shared service arrangement shall submit information to the TEA indicating the students' identification numbers, initial dates of placement, and the names of the facilities with which the school district or shared service arrangement is contracting. The school district or shared service arrangement shall not count contract students' average daily attendance as eligible. The TEA shall determine the number of contract students reported in full-time equivalents and pay state funds to the district according to the formula prescribed in law.

(f) Other program options which may be considered for the delivery of special education and related services to a student may include the following:

(1) contracts with other school districts; and

(2) other program options as approved by the TEA.

Comments

Source Note: The provisions of this §89.63 adopted to be effective September 1, 1996, 21 TexReg 5690; amended to be effective September 1, 2000, 25 TexReg 4529

Subchapter AA

Division 1

§89.1001: Scope and Applicability

(a) Special education services shall be provided to eligible students in accordance with all applicable federal law and regulations, state statutes, rules of the State Board of Education (SBOE) and commissioner of education, and the State Plan Under Part B of the Individuals with Disabilities Education Act (IDEA).

(b) Education programs, under the direction and control of the Texas Youth Commission, Texas School for the Blind and Visually Impaired, Texas School for the Deaf, and schools within the Texas Department of Criminal Justice shall comply with state and federal law and regulations concerning the delivery of special education and related services to eligible students and shall be monitored by the Texas Education Agency in accordance with the requirements identified in subsection (a) of this section.

(c) A school district having a residential facility that is licensed by appropriate state agencies and located within the district's boundaries must provide special education and related services to eligible students residing in the facility. If, after contacting the facility to offer services to eligible students with disabilities, the district determines that educational services are provided through a charter school, approved non-public school, or a facility operated private school, the district is not required to provide services. However, the district shall annually contact the facility to offer services to eligible students with disabilities.

Comments

Source Note: The provisions of this §89.1001 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837

Division 2

§89.1011: Referral for Full and Individual Initial Evaluation

Referral of students for a full and individual initial evaluation for possible special education services shall be a part of the district's overall, general education referral or screening system. Prior to referral, students experiencing difficulty in the general classroom should be considered for all support services available to all students, such as tutorial; remedial; compensatory; response to scientific, research-based intervention; and other academic or behavior support services. If the student continues to experience difficulty in the general classroom after the provision of interventions, district personnel must refer the student for a full and individual initial evaluation. This referral for a full and individual initial evaluation may be initiated by school personnel, the student's parents or legal guardian, or another person involved in the education or care of the student.

Comments

Source Note: The provisions of this §89.1011 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1015: Time Line for All Notices

"Reasonable time" required for the written notice to parents under 34 Code of Federal Regulations (CFR), §300.503, is defined as at least five school days, unless the parents agree otherwise.

Comments

Source Note: The provisions of this §89.1015 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837

§89.1035: Age Ranges for Student Eligibility

(a) Pursuant to state and federal law, services provided in accordance with this subchapter shall be available to all eligible students ages 3-21. Services will be made available to eligible students on their third birthday. Graduation with a regular high school diploma pursuant to §89.1070(b)(1)-(2) of this title (relating to Graduation Requirements) terminates a student's eligibility to receive services in accordance with this subchapter. An eligible student receiving special education services who is 21 years of age on September 1 of a school year shall be eligible for services through the end of that school year or until graduation with a regular high school diploma pursuant to §89.1070(b)(1)-(2) of this title, whichever comes first.

(b) In accordance with the Texas Education Code (TEC), §§29.003, 30.002(a), and 30.081, a free, appropriate, public education shall be available from birth to students with visual or auditory impairments.

Comments

Source Note: The provisions of this §89.1035 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837

§89.1040: Eligibility Criteria

(a) Special education services. To be eligible to receive special education services, a student must be a "child with a disability," as defined in 34 Code of Federal Regulations (CFR), §300.8(a), subject to the provisions of 34 CFR, §300.8(c), the Texas Education Code (TEC), §29.003, and this section. The provisions in this section specify criteria to be used in determining whether a student's condition meets one or more of the definitions in federal regulations or in state law.

(b) Eligibility determination. The determination of whether a student is eligible for special education and related services is made by the student's admission, review, and dismissal (ARD) committee. Any evaluation or re-evaluation of a student shall be conducted in accordance with 34 CFR, §§300.301-300.306 and 300.122. The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility must include, but is not limited to, the following:

(1) a licensed specialist in school psychology (LSSP), an educational diagnostician, or other appropriately certified or licensed practitioner with experience and training in the area of the disability; or

(2) a licensed or certified professional for a specific eligibility category defined in subsection (c) of this section.

(c) Eligibility definitions.

(1) Autism. A student with autism is one who has been determined to meet the criteria for autism as stated in 34 CFR, §300.8(c)(1). Students with pervasive developmental disorders are included under this category. The team's written report of evaluation shall include specific recommendations for behavioral interventions and strategies.

(2) Deaf-blindness. A student with deaf-blindness is one who has been determined to meet the criteria for deaf-blindness as stated in 34 CFR, §300.8(c)(2). In meeting the criteria stated in 34 CFR, §300.8(c)(2), a student with deaf-blindness is one who, based on the evaluations specified in subsections (c)(3) and (c)(12) of this section:

(A) meets the eligibility criteria for auditory impairment specified in subsection (c)(3) of this section and visual impairment specified in subsection (c)(12) of this section;

(B) meets the eligibility criteria for a student with a visual impairment and has a suspected hearing loss that cannot be demonstrated conclusively, but a speech/language therapist, a certified speech and language therapist, or a licensed speech language pathologist indicates there is no speech at an age when speech would normally be expected;

(C) has documented hearing and visual losses that, if considered individually, may not meet the requirements for auditory impairment or visual impairment, but the combination of such losses adversely affects the student's educational performance; or

(D) has a documented medical diagnosis of a progressive medical condition that will result in concomitant hearing and visual losses that, without special education intervention, will adversely affect the student's educational performance.

(3) Auditory impairment. A student with an auditory impairment is one who has been determined to meet the criteria for deafness as stated in 34 CFR, §300.8(c)(3), or for hearing impairment as stated in 34 CFR, §300.8(c)(5). The evaluation data reviewed by the multidisciplinary team in connection with the determination of a student's eligibility based on an auditory impairment must include an otological examination performed by an otologist or by a licensed medical doctor, with documentation that an otologist is not reasonably available. An audiological evaluation by a licensed audiologist shall also be conducted. The evaluation data shall include a description of the implications of the hearing loss for the student's hearing in a variety of circumstances with or without recommended amplification.

(4) Emotional disturbance. A student with an emotional disturbance is one who has been determined to meet the criteria for emotional disturbance as stated in 34 CFR, §300.8(c)(4). The written report of evaluation shall include specific recommendations for behavioral supports and interventions.

(5) Mental retardation. A student with mental retardation is one who has been determined to meet the criteria for mental retardation as stated in 34 CFR, §300.8(c)(6). In meeting the criteria stated in 34 CFR, §300.8(c)(6), a student with mental retardation is one who:

(A) has been determined to have significantly sub-average intellectual functioning as measured by a standardized, individually administered test of cognitive ability in which the overall test score is at least two standard deviations below the mean, when taking into consideration the standard error of measurement of the test; and

(B) concurrently exhibits deficits in at least two of the following areas of adaptive behavior: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety.

(6) Multiple disabilities.

(A) A student with multiple disabilities is one who has been determined to meet the criteria for multiple disabilities as stated in 34 CFR, §300.8(c)(7). In meeting the criteria stated in 34 CFR, §300.8(c)(7), a student with multiple disabilities is one who has a combination of disabilities defined in this section and who meets all of the following conditions:

(i) the student's disability is expected to continue indefinitely; and

(ii) the disabilities severely impair performance in two or more of the following areas:

(I) psychomotor skills;

(II) self-care skills;

(III) communication;

(IV) social and emotional development; or

(V) cognition.

(B) Students who have more than one of the disabilities defined in this section but who do not meet the criteria in subparagraph (A) of this paragraph shall not be classified or reported as having multiple disabilities.

(7) Orthopedic impairment. A student with an orthopedic impairment is one who has been determined to meet the criteria for orthopedic impairment as stated in 34 CFR, §300.8(c)(8). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on an orthopedic impairment must include a licensed physician.

(8) Other health impairment. A student with other health impairment is one who has been determined to meet the criteria for other health impairment due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette's Disorder as stated in 34 CFR, §300.8(c)(9). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on other health impairment must include a licensed physician.

(9) Learning disability.

(A) Prior to and as part of the evaluation described in subparagraph (B) of this paragraph and 34 CFR, §§300.307-300.311, and in order to ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or mathematics, the following must be considered:

(i) data that demonstrates the child was provided appropriate instruction in reading (as described in 20 USC, §6368(3)), and/or mathematics within general education settings delivered by qualified personnel; and

(ii) data-based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal evaluation of student progress during instruction. Data-based documentation of repeated assessments may include, but is not limited to, response to intervention progress monitoring results, in-class tests on grade-level curriculum, or other regularly administered assessments. Intervals are considered reasonable if consistent with the assessment requirements of a student's specific instructional program.

(B) A student with a learning disability is one who:

(i) has been determined through a variety of assessment tools and strategies to meet the criteria for a specific learning disability as stated in 34 CFR, §300.8(c)(10), in accordance with the provisions in 34 CFR, §§300.307-300.311; and

(ii) does not achieve adequately for the child's age or meet state-approved grade-level standards in oral expression, listening comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, or mathematics problem solving when provided appropriate instruction, as indicated by performance on multiple measures such as in-class tests; grade average over time (e.g. six weeks, semester); norm- or criterion-referenced tests; statewide assessments; or a process based on the child's response to scientific, research-based intervention; and

(I) does not make sufficient progress when provided a process based on the child's response to scientific, research-based intervention (as defined in 20 USC, §7801(37)), as indicated by the child's performance relative to the performance of the child's peers on repeated, curriculum-based assessments of achievement at reasonable intervals, reflecting student progress during classroom instruction; or

(II) exhibits a pattern of strengths and weaknesses in performance, achievement, or both relative to age, grade-level standards, or intellectual ability, as indicated by significant variance among specific areas of cognitive function, such as working memory and verbal comprehension, or between specific areas of cognitive function and academic achievement.

(10) Speech impairment. A student with a speech impairment is one who has been determined to meet the criteria for speech or language impairment as stated in 34 CFR, §300.8(c)(11). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on a speech impairment must include a certified speech and hearing therapist, a certified speech and language therapist, or a licensed speech/language pathologist.

(11) Traumatic brain injury. A student with a traumatic brain injury is one who has been determined to meet the criteria for traumatic brain injury as stated in 34 CFR, §300.8(c)(12). The multidisciplinary team that collects or reviews evaluation data in connection with the determination of a student's eligibility based on a traumatic brain injury must include a licensed physician, in addition to the licensed or certified practitioners specified in subsection (b)(1) of this section.

(12) Visual impairment.

(A) A student with a visual impairment is one who has been determined to meet the criteria for visual impairment as stated in 34 CFR, §300.8(c)(13). The visual loss should be stated in exact measures of visual field and corrected visual acuity at a distance and at close range in each eye in a report by a licensed ophthalmologist or optometrist. The report should also include prognosis whenever possible. If exact measures cannot be obtained, the eye specialist must so state and provide best estimates. In meeting the criteria stated in 34 CFR, §300.8(c)(13), a student with a visual impairment is one who:

(i) has been determined by a licensed ophthalmologist or optometrist:

(I) to have no vision or to have a serious visual loss after correction; or

(II) to have a progressive medical condition that will result in no vision or a serious visual loss after correction.

(ii) has been determined by the following evaluations to have a need for special services:

(I) a functional vision evaluation by a professional certified in the education of students with visual impairments or a certified orientation and mobility instructor. The evaluation must include the performance of tasks in a variety of environments requiring the use of both near and distance vision and recommendations concerning the need for a clinical low vision evaluation and an orientation and mobility evaluation; and

(II) a learning media assessment by a professional certified in the education of students with visual impairments. The learning media assessment must include recommendations concerning which specific visual, tactual, and/or auditory learning media are appropriate for the student and whether or not there is a need for ongoing evaluation in this area.

(B) A student with a visual impairment is functionally blind if, based on the preceding evaluations, the student will use tactual media (which includes Braille) as a primary tool for learning to be able to communicate in both reading and writing at the same level of proficiency as other students of comparable ability.

(13) Noncategorical. A student between the ages of 3-5 who is evaluated as having mental retardation, emotional disturbance, a specific learning disability, or autism may be described as noncategorical early childhood.

Comments

Source Note: The provisions of this §89.1040 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1045: Notice to Parents for Admission, Review, and Dismissal (ARD) Committee Meetings

(a) A district shall invite the parents and adult student to participate as members of the admission, review, and dismissal (ARD) committee by providing written notice in accordance with 34 Code of Federal Regulations (CFR), §§300.300, 300.322, and 300.503.

(b) A parent may request an ARD committee meeting at any mutually agreeable time to address specific concerns about his or her child's special education services. The school district must respond to the parent's request either by holding the requested meeting or by requesting assistance through the Texas Education Agency's mediation process. The district should inform parents of the functions of the ARD committee and the circumstances or types of problems for which requesting an ARD committee meeting would be appropriate.

Comments

Source Note: The provisions of this §89.1045 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1047: Procedures for Surrogate and Foster Parents

(a) An individual assigned to act as a surrogate parent for a student with a disability, in accordance with 34 Code of Federal Regulations (CFR), §300.519, relating to surrogate parents, must comply with the requirements specified in Texas Education Code (TEC), §29.001(10).

(1) Pursuant to TEC, §29.001(10)(A), an individual assigned to act as a surrogate parent must complete a training program in which the individual is provided with an explanation of the provisions of federal and state laws, rules, and regulations relating to:

(A) the identification of a student with a disability;

(B) the collection of evaluation and re-evaluation data relating to a student with a disability;

(C) the admission, review, and dismissal (ARD) committee process;

(D) the development of an individualized education program (IEP), including the consideration of transition services for a student who is at least 16 years of age;

(E) the determination of least restrictive environment;

(F) the implementation of an IEP;

(G) the procedural rights and safeguards available under 34 CFR, §§300.148, 300.151-300.153, 300.229, 300.300, 300.500-300.520, 300.530-300.537, and 300.610-300.627, relating to the issues described in 34 CFR, §300.504(c); and

(H) the sources that the surrogate parent may contact to obtain assistance in understanding the provisions of federal and state laws, rules, and regulations relating to students with disabilities.

(2) The training program described in subsection (a)(1) of this section must be provided in the native language or other mode of communication used by the individual who is to serve as a surrogate parent.

(3) The individual assigned to act as a surrogate parent must complete the training program described in subsection (a)(1) of this section within 90 calendar days after the date of initial assignment as a surrogate parent. Once an individual has completed a training program conducted or provided by or through the Texas Department of Family and Protective Services (TDFPS), a school district, an education service center, or any entity that receives federal funds to provide Individuals with Disabilities Education Act (IDEA) training to parents, the individual shall not be required by any school district to complete additional training in order to continue serving as the student's surrogate parent or to serve as the surrogate parent for other students with disabilities. School districts may provide ongoing or additional training to surrogate parents and/or parents; however, a district cannot deny an individual who has received the training as described in subsection (a)(1) of this section from serving as a surrogate parent on the grounds that the individual has not been trained.

(4) A school district should provide or arrange for the provision of the training program described in subsection (a)(1) of this section prior to assigning an individual to act as a surrogate parent but no later than 90 calendar days after assignment.

(b) A foster parent may act as a parent of a child with a disability, in accordance with 34 CFR, §300.30, relating to the definition of parent, if he/she complies with the requirements of TEC, §29.015(b), relating to foster parents, including the completion of the training program described in subsection (a)(1) of this section.

(1) The foster parent must complete the training program described in subsection (a)(1) of this section within 90 calendar days after the date of initial assignment as the parent. Once a foster parent has completed a training program conducted or provided by the TDFPS, a school district, an education service center, or any entity that receives federal funds to provide IDEA training to parents, the foster parent shall not be required by any school district to complete additional training in order to continue serving as his/her child's surrogate parent or parent or to serve as the surrogate parent or parent for other students with disabilities. School districts may provide ongoing or additional training to foster parents and/or parents; however, a district cannot deny an individual who has received the training as described in subsection (a)(1) of this section from serving as the parent on the grounds that the individual has not been trained.

(2) A school district should provide or arrange for the provision of the training program described in subsection (a)(1) of this section prior to assigning a foster parent to act as a parent but no later than 90 calendar days after assignment.

(c) Each school district or shared services arrangement shall develop and implement procedures for conducting an analysis of whether a foster parent or potential surrogate parent has an interest that conflicts with the interests of his/her child. A foster parent in a home which is verified by the TDFPS or a child-placing agency shall not be deemed to have a financial conflict of interest by virtue of serving as the foster parent in that home. These homes include, but are not limited to, basic, habilitative, primary medical, or therapeutic foster or foster group homes. In addition, issues concerning quality of care of the child do not constitute a conflict of interest. Concerns regarding quality of care of the child should be communicated, and may be statutorily required to be reported, to TDFPS.

(d) If a school district denies a foster parent the right to serve as a surrogate parent or parent, the school district must provide the foster parent with written notice of such denial within seven calendar days after the date on which the decision is made. The written notice shall:

(1) specify the reason(s) the foster parent is being denied the right to serve as the surrogate parent or parent (the notice must specifically explain the interests of the foster parent that conflict with the interests of his/her child); and

(2) inform the foster parent of his/her right to file a complaint with the Texas Education Agency in accordance with 34 CFR, §§300.151-300.153, relating to complaint procedures.

Comments

Source Note: The provisions of this §89.1047 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1049: Parental Rights Regarding Adult Students

(a) In accordance with 34 Code of Federal Regulations (CFR), §300.320(c) and §300.520, and Texas Education Code (TEC), §29.017, beginning at least one year before a student reaches 18 years of age, the student's individualized education program (IEP) must include a statement that the student has been informed that, unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII, Guardianship, all rights granted to the parent under the Individuals with Disabilities Education Act (IDEA), Part B, other than the right to receive any notice required under IDEA, Part B, will transfer to the student upon reaching age 18. After the student reaches the age of 18, except as provided by subsection (b) of this section, the school district shall provide any notice required under IDEA, Part B, to both the adult student and the parent.

(b) In accordance with 34 CFR, §300.520(a)(2), and TEC, §29.017(a), all rights accorded to a parent under IDEA, Part B, including the right to receive any notice required by IDEA, Part B, will transfer to an 18-year-old student who is incarcerated in an adult or juvenile, state or local correctional institution, unless the student's parent or other individual has been granted guardianship of the student under the Probate Code, Chapter XIII, Guardianship.

(c) In accordance with 34 CFR, §300.520(a)(3), a school district must notify in writing the adult student and parent of the transfer of parental rights, as described in subsections (a) and (b) of this section, at the time the student reaches the age of 18. This notification is separate and distinct from the requirement that the student's IEP include a statement relating to the transfer of parental rights beginning at least one year before the student reaches the age of 18. This notification is not required to contain the elements of notice referenced in 34 CFR, §300.503, but must include a statement that parental rights have transferred to the adult student and provide contact information for the parties to use in obtaining additional information.

(d) A notice under IDEA, Part B, which is required to be given to an adult student and parent does not create a right for the parent to consent to or participate in the proposal or refusal to which the notice relates. For example, a notice of an admission, review, and dismissal (ARD) committee meeting does not constitute invitation to, or create a right for, the parent to attend the meeting. However, in accordance with 34 CFR, §300.321(a)(6), the adult student or the school district may invite individuals who have knowledge or special expertise regarding the student, including the parent.

(e) Nothing in this section prohibits a valid power of attorney from being executed by an individual who holds rights under IDEA, Part B.

Comments

Source Note: The provisions of this §89.1049 adopted to be effective April 18, 2002, 27 TexReg 3061; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1050: The Admission, Review, and Dismissal (ARD) Committee

(a) Each school district shall establish an admission, review, and dismissal (ARD) committee for each eligible student with a disability and for each student for whom a full and individual initial evaluation is conducted pursuant to §89.1011 of this title (relating to Referral for Full and Individual Initial Evaluation). The ARD committee shall be the individualized education program (IEP) team defined in federal law and regulations, including, specifically, 34 Code of Federal Regulations (CFR), §300.321. The school district shall be responsible for all of the functions for which the IEP team is responsible under federal law and regulations and for which the ARD committee is responsible under state law, including, specifically, the following:

(1) 34 CFR, §§300.320-300.325, and Texas Education Code (TEC), §29.005 (individualized education programs);

(2) 34 CFR, §§300.145-300.147 (relating to placement of eligible students in private schools by a school district);

(3) 34 CFR, §§300.132, 300.138, and 300.139 (relating to the development and implementation of service plans for eligible students placed by parents in private school who have been designated to receive special education and related services);

(4) 34 CFR, §300.530 and §300.531, and TEC, §37.004 (disciplinary placement of students with disabilities);

(5) 34 CFR, §§300.302-300.306 (relating to evaluations, re-evaluations, and determination of eligibility);

(6) 34 CFR, §§300.114-300.117 (relating to least restrictive environment);

(7) TEC, §28.006 (Reading Diagnosis);

(8) TEC, §28.0211 (Satisfactory Performance on Assessment Instruments Required; Accelerated Instruction);

(9) TEC, §28.0212 (Personal Graduation Plan);

(10) TEC, §28.0213 (Intensive Program of Instruction);

(11) TEC, Chapter 29, Subchapter I (Programs for Students Who Are Deaf or Hard of Hearing);

(12) TEC, §30.002 (Education of Children with Visual Impairments);

(13) TEC, §30.003 (Support of Students Enrolled in the Texas School for the Blind and Visually Impaired or Texas School for the Deaf);

(14) TEC, §33.081 (Extracurricular Activities);

(15) TEC, Chapter 39, Subchapter B (Assessment of Academic Skills); and

(16) TEC, §42.151 (Special Education).

(b) For a child from birth through two years of age with visual and/or auditory impairments, an individualized family services plan (IFSP) meeting must be held in place of an ARD committee meeting in accordance with 34 CFR, §§300.320-300.324, and the memorandum of understanding between the Texas Education Agency (TEA) and Texas Interagency Council on Early Childhood Intervention. For students three years of age and older, school districts must develop an IEP.

(c) ARD committee membership.

(1) ARD committees shall include those persons identified in 34 CFR, §300.321(a), as follows:

(A) the parent(s) of the child;

(B) not less than one regular education teacher of the child (if the child is, or may be, participating in the regular education environment);

(C) not less than one special education teacher of the child, or where appropriate, not less than one special education provider of the child;

(D) a representative of the school district who:

(i) is qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities;

(ii) is knowledgeable about the general education curriculum; and

(iii) is knowledgeable about the availability of resources of the school district;

(E) an individual who can interpret the instructional implications of evaluation results, who may be a member of the team described in subparagraphs (B)-(F) of this paragraph;

(F) at the discretion of the parent or the school district, other individuals who have knowledge or special expertise regarding the child, including related services personnel, as appropriate; and

(G) whenever appropriate, the child with a disability.

(2) The regular education teacher who serves as a member of a student's ARD committee should be a regular education teacher who is responsible for implementing a portion of the student's IEP.

(3) The special education teacher or special education provider that participates in the ARD committee meeting in accordance with 34 CFR, §300.321(a)(3), must be appropriately certified or licensed as required by 34 CFR, §300.18 and §300.156.

(4) If the student is:

(A) a student with a suspected or documented visual impairment, the ARD committee shall include a teacher who is certified in the education of students with visual impairments;

(B) a student with a suspected or documented auditory impairment, the ARD committee shall include a teacher who is certified in the education of students with auditory impairments; or

(C) a student with suspected or documented deaf-blindness, the ARD committee shall include a teacher who is certified in the education of students with visual impairments and a teacher who is certified in the education of students with auditory impairments.

(5) An ARD committee member, including a member described in subsection (c)(4) of this section, is not required to attend an ARD committee meeting if the conditions of either 34 CFR, §300.321(e)(1), regarding attendance, or 34 CFR, §300.321(e)(2), regarding excusal, have been met.

(d) The ARD committee shall make its decisions regarding students referred for a full and individual initial evaluation within 30 calendar days from the date of the completion of the written full and individual initial evaluation report. If the 30th day falls during the summer and school is not in session, the ARD committee shall have until the first day of classes in the fall to finalize decisions concerning the initial eligibility determination, the IEP, and placement, unless the full and individual initial evaluation indicates that the student will need extended school year (ESY) services during that summer.

(e) The written report of the ARD committee shall document the decisions of the committee with respect to issues discussed at the meeting. The report shall include the date, names, positions, and signatures of the members participating in each meeting in accordance with 34 CFR, §§300.321, 300.322, 300.324, and 300.325. The report shall also indicate each member's agreement or disagreement with the committee's decisions. In the event TEC, §29.005(d)(1), applies, the district shall provide a written or audio-taped copy of the student's IEP, as defined in 34 CFR, §300.324 and §300.320. In the event TEC, §29.005(d)(2), applies, the district shall make a good faith effort to provide a written or audio-taped copy of the student's IEP, as defined in 34 CFR, §300.324 and §300.320.

(f) A school district shall comply with the following for a student who is newly enrolled in a school district.

(1) If the student was in the process of being evaluated for special education eligibility in the student's previous school district, the student's current school district shall coordinate with the student's previous school district as necessary and as expeditiously as possible to ensure a prompt completion of the evaluation in accordance with 34 CFR, §300.301(d)(2) and (e) and §300.304(c)(5). The evaluation shall be completed not later than the 60th calendar day following the date on which the current school district receives written consent as required by the TEC, §29.004.

(2) When a student transfers within the state and the parents verify that the student was receiving special education services in the previous school district or the previous school district verifies in writing or by telephone that the student was receiving special education services, the school district must meet the requirements of 34 CFR, §300.323(a) and (e), regarding the provision of special education services. The timeline for completing the requirements outlined in 34 CFR, §300.323(e)(1) or (2), shall be 30 school days from the date the student is verified as being a student eligible for special education services.

(3) When a student transfers from another state and the parents verify that the student was receiving special education services in the previous school district or the previous school district verifies in writing or by telephone that the student was receiving special education services, the school district must meet the requirements of 34 CFR, §300.323(a) and (f), regarding the provision of special education services. The timeline for completing the requirements outlined in 34 CFR, §300.323(f)(1) and (2), shall be 30 school days from the date the student is verified as being a student eligible for special education services.

(4) In accordance with TEC, §25.002, and 34 CFR, §300.323(g), the school district in which the student was previously enrolled shall furnish the new school district with a copy of the student's records, including the child's special education records, not later than the 30th calendar day after the student was enrolled in the new school district. The Family Educational Rights and Privacy Act (FERPA), 20 United States Code, §1232g, does not require the student's current and previous school districts to obtain parental consent before requesting or sending the student's special education records if the disclosure is conducted in accordance with 34 CFR, §99.31(a)(2) and §99.34.

(g) All disciplinary actions regarding students with disabilities shall be determined in accordance with 34 CFR, §§300.101(a) and §300.530-300.536 (relating to disciplinary actions and procedures), the TEC, Chapter 37, Subchapter A (Alternative Settings for Behavior Management), and §89.1053 of this title (relating to Procedures for Use of Restraint and Time-Out).

(h) All members of the ARD committee shall have the opportunity to participate in a collaborative manner in developing the IEP. A decision of the committee concerning required elements of the IEP shall be made by mutual agreement of the required members if possible. The committee may agree to an annual IEP or an IEP of shorter duration.

(1) When mutual agreement about all required elements of the IEP is not achieved, the party (the parents or adult student) who disagrees shall be offered a single opportunity to have the committee recess for a period of time not to exceed ten school days. This recess is not required when the student's presence on the campus presents a danger of physical harm to the student or others or when the student has committed an expellable offense or an offense which may lead to a placement in an alternative education program (AEP). The requirements of this subsection (h) do not prohibit the members of the ARD committee from recessing an ARD committee meeting for reasons other than the failure of the parents and the school district from reaching mutual agreement about all required elements of an IEP.

(2) During the recess the committee members shall consider alternatives, gather additional data, prepare further documentation, and/or obtain additional resource persons which may assist in enabling the ARD committee to reach mutual agreement.

(3) The date, time, and place for continuing the ARD committee meeting shall be determined by mutual agreement prior to the recess.

(4) If a ten-day recess is implemented as provided in paragraph (1) of this subsection and the ARD committee still cannot reach mutual agreement, the district shall implement the IEP which it has determined to be appropriate for the student.

(5) When mutual agreement is not reached, a written statement of the basis for the disagreement shall be included in the IEP. The members who disagree shall be offered the opportunity to write their own statements.

(6) When a district implements an IEP with which the parents disagree or the adult student disagrees, the district shall provide prior written notice to the parents or adult student as required in 34 CFR, §300.503.

(7) Parents shall have the right to file a complaint, request mediation, and request a due process hearing at any point when they disagree with decisions of the ARD committee.

Comments

Source Note: The provisions of this §89.1050 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1052: Discretionary Placements in Juvenile Justice Alternative Education Programs (JJAEP)

(a) This section applies only to the expulsion of a student with a disability under:

(1) Texas Education Code (TEC), §37.007(b), (c), or (f); or

(2) TEC, §37.007(d), as a result of conduct that contains the elements of any offense listed in TEC, §37.007(b)(2)(C), against any employee or volunteer in retaliation for or as a result of the person's employment or association with a school district.

(b) In a county with a JJAEP, a local school district shall invite the administrator of the JJAEP or the administrator's designee to an admission, review, and dismissal (ARD) committee meeting convened to discuss the expulsion of a student with a disability under one of the provisions listed in subsection (a) of this section, relating to offenses for which a school district may expel a student. The reasonable notice of the ARD committee meeting must be provided consistent with 34 Code of Federal Regulations (CFR), §300.322 and §300.503, and §89.1015 of this title (relating to Time Line for All Notices). A copy of the student's current individualized education program (IEP) must be provided to the JJAEP administrator or designee with the notice. If the JJAEP representative is unable to attend the ARD committee meeting, the representative must be given the opportunity to participate in the meeting through alternative means including conference telephone calls. The JJAEP representative may participate in the meeting to the extent that the meeting relates to the student's placement in the JJAEP and implementation of the student's current IEP in the JJAEP.

(c) For a student with a disability who was expelled under one of the provisions listed in subsection (a) of this section, an ARD committee meeting must be convened to reconsider placement of the student in the JJAEP, if the JJAEP administrator or designee provides written notice to the school district of specific concerns that the student's educational or behavioral needs cannot be met in the JJAEP. The reasonable notice of the ARD committee meeting must be provided consistent with 34 CFR, §300.322 and §300.503, and §89.1015 of this title (relating to Time Line for All Notices). If the JJAEP representative is unable to attend the ARD committee meeting, the representative must be given the opportunity to participate in the meeting through alternative means including conference telephone calls. The JJAEP representative may participate in the meeting to the extent that the meeting relates to the student's continued placement in the JJAEP.

Comments

Source Note: The provisions of this §89.1052 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1053: Procedures for Use of Restraint and Time-Out

(a) Requirement to implement. In addition to the requirements of 34 Code of Federal Regulations (CFR), §300.324(a)(2)(i) and (c), school districts and charter schools must implement the provisions of this section regarding the use of restraint and time-out. In accordance with the provisions of Texas Education Code (TEC), §37.0021 (Use of Confinement, Restraint, Seclusion, and Time-Out), it is the policy of the state to treat with dignity and respect all students, including students with disabilities who receive special education services under TEC, Chapter 29, Subchapter A.

(b) Definitions.

(1) Emergency means a situation in which a student's behavior poses a threat of:

(A) imminent, serious physical harm to the student or others; or

(B) imminent, serious property destruction.

(2) Restraint means the use of physical force or a mechanical device to significantly restrict the free movement of all or a portion of the student's body.

(3) Time-out means a behavior management technique in which, to provide a student with an opportunity to regain self-control, the student is separated from other students for a limited period in a setting:

(A) that is not locked; and

(B) from which the exit is not physically blocked by furniture, a closed door held shut from the outside, or another inanimate object.

(c) Use of restraint. A school employee, volunteer, or independent contractor may use restraint only in an emergency as defined in subsection (b) of this section and with the following limitations.

(1) Restraint shall be limited to the use of such reasonable force as is necessary to address the emergency.

(2) Restraint shall be discontinued at the point at which the emergency no longer exists.

(3) Restraint shall be implemented in such a way as to protect the health and safety of the student and others.

(4) Restraint shall not deprive the student of basic human necessities.

(d) Training on use of restraint. Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements.

(1) A core team of personnel on each campus must be trained in the use of restraint, and the team must include a campus administrator or designee and any general or special education personnel likely to use restraint.

(2) Personnel called upon to use restraint in an emergency and who have not received prior training must receive training within 30 school days following the use of restraint.

(3) Training on use of restraint must include prevention and de-escalation techniques and provide alternatives to the use of restraint.

(4) All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of restraint.

(e) Documentation and notification on use of restraint. In a case in which restraint is used, school employees, volunteers, or independent contractors shall implement the following documentation requirements.

(1) On the day restraint is utilized, the campus administrator or designee must be notified verbally or in writing regarding the use of restraint.

(2) On the day restraint is utilized, a good faith effort shall be made to verbally notify the parent(s) regarding the use of restraint.

(3) Written notification of the use of restraint must be placed in the mail or otherwise provided to the parent within one school day of the use of restraint.

(4) Written documentation regarding the use of restraint must be placed in the student's special education eligibility folder in a timely manner so the information is available to the ARD committee when it considers the impact of the student's behavior on the student's learning and/or the creation or revision of a behavioral intervention plan (BIP).

(5) Written notification to the parent(s) and documentation to the student's special education eligibility folder shall include the following:

(A) name of the student;

(B) name of the staff member(s) administering the restraint;

(C) date of the restraint and the time the restraint began and ended;

(D) location of the restraint;

(E) nature of the restraint;

(F) a description of the activity in which the student was engaged immediately preceding the use of restraint;

(G) the behavior that prompted the restraint;

(H) the efforts made to de-escalate the situation and alternatives to restraint that were attempted; and

(I) information documenting parent contact and notification.

(f) Clarification regarding restraint. The provisions adopted under this section do not apply to the use of physical force or a mechanical device which does not significantly restrict the free movement of all or a portion of the student's body. Restraint that involves significant restriction as referenced in subsection (b)(2) of this section does not include:

(1) physical contact or appropriately prescribed adaptive equipment to promote normative body positioning and/or physical functioning;

(2) limited physical contact with a student to promote safety (e.g., holding a student's hand), prevent a potentially harmful action (e.g., running into the street), teach a skill, redirect attention, provide guidance to a location, or provide comfort;

(3) limited physical contact or appropriately prescribed adaptive equipment to prevent a student from engaging in ongoing, repetitive self-injurious behaviors, with the expectation that instruction will be reflected in the individualized education program (IEP) as required by 34 CFR, §300.324(a)(2)(i) and (c) to promote student learning and reduce and/or prevent the need for ongoing intervention; or

(4) seat belts and other safety equipment used to secure students during transportation.

(g) Use of time-out. A school employee, volunteer, or independent contractor may use time-out in accordance with subsection (b)(3) of this section with the following limitations.

(1) Physical force or threat of physical force shall not be used to place a student in time-out.

(2) Time-out may only be used in conjunction with an array of positive behavior intervention strategies and techniques and must be included in the student's IEP and/or BIP if it is utilized on a recurrent basis to increase or decrease a targeted behavior.

(3) Use of time-out shall not be implemented in a fashion that precludes the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

(h) Training on use of time-out. Training for school employees, volunteers, or independent contractors shall be provided according to the following requirements.

(1) General or special education personnel who implement time-out based on requirements established in a student's IEP and/or BIP must be trained in the use of time-out.

(2) Newly-identified personnel called upon to implement time-out based on requirements established in a student's IEP and/or BIP must receive training in the use of time-out within 30 school days of being assigned the responsibility for implementing time-out.

(3) Training on the use of time-out must be provided as part of a program which addresses a full continuum of positive behavioral intervention strategies, and must address the impact of time-out on the ability of the student to be involved in and progress in the general curriculum and advance appropriately toward attaining the annual goals specified in the student's IEP.

(4) All trained personnel shall receive instruction in current professionally accepted practices and standards regarding behavior management and the use of time-out.

(i) Documentation on use of time-out. Necessary documentation or data collection regarding the use of time-out, if any, must be addressed in the IEP or BIP. The admission, review, and dismissal (ARD) committee must use any collected data to judge the effectiveness of the intervention and provide a basis for making determinations regarding its continued use.

(j) Student safety. Any behavior management technique and/or discipline management practice must be implemented in such a way as to protect the health and safety of the student and others. No discipline management practice may be calculated to inflict injury, cause harm, demean, or deprive the student of basic human necessities.

(k) Data reporting. With the exception of actions covered by subsection (f) of this section, data regarding the use of restraint must be electronically reported to the Texas Education Agency in accordance with reporting standards specified by the agency.

(l) The provisions adopted under this section do not apply to:

(1) a peace officer while performing law enforcement duties;

(2) juvenile probation, detention, or corrections personnel; or

(3) an educational services provider with whom a student is placed by a judicial authority, unless the services are provided in an educational program of a school district.

Comments

Source Note: The provisions of this §89.1053 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1055: Content of the Individualized Education Program (IEP)

(a) The individualized education program (IEP) developed by the admission, review, and dismissal (ARD) committee for each student with a disability shall comply with the requirements of 34 Code of Federal Regulations (CFR), §300.320 and §300.324.

(b) The IEP must include a statement of any individual appropriate and allowable accommodations in the administration of assessment instruments developed in accordance with Texas Education Code (TEC), §39.023(a)-(c), or district-wide assessments of student achievement (if the district administers such optional assessments) that are necessary to measure the academic achievement and functional performance of the child on the assessments. If the ARD committee determines that the student will not participate in a general state-wide assessment or district-wide assessment of student achievement (or part of an assessment), the IEP must include a statement of:

(1) why the child cannot participate in the regular assessment; and

(2) why the particular alternate assessment selected is appropriate for the child.

(c) If the ARD committee determines that the student is in need of extended school year (ESY) services, as described in §89.1065 of this title (relating to Extended School Year Services (ESY Services)), then the IEP must also include goals and objectives for ESY services from the student's current IEP.

(d) For students with visual impairments, from birth through 21 years of age, the IEP or individualized family services plan (IFSP) shall also meet the requirements of TEC, §30.002(e).

(e) For students eligible under §89.1040(c)(1) of this title (relating to Eligibility Criteria), the strategies described in paragraphs (1)-(11) of this subsection shall be considered, based on peer-reviewed, research-based educational programming practices to the extent practicable and, when needed, addressed in the IEP:

(1) extended educational programming (for example: extended day and/or extended school year services that consider the duration of programs/settings based on assessment of behavior, social skills, communication, academics, and self-help skills);

(2) daily schedules reflecting minimal unstructured time and active engagement in learning activities (for example: lunch, snack, and recess periods that provide flexibility within routines; adapt to individual skill levels; and assist with schedule changes, such as changes involving substitute teachers and pep rallies);

(3) in-home and community-based training or viable alternatives that assist the student with acquisition of social/behavioral skills (for example: strategies that facilitate maintenance and generalization of such skills from home to school, school to home, home to community, and school to community);

(4) positive behavior support strategies based on relevant information, for example:

(A) antecedent manipulation, replacement behaviors, reinforcement strategies, and data-based decisions; and

(B) a Behavior Intervention Plan developed from a Functional Behavioral Assessment that uses current data related to target behaviors and addresses behavioral programming across home, school, and community-based settings;

(5) beginning at any age, consistent with subsections (g) of this section, futures planning for integrated living, work, community, and educational environments that considers skills necessary to function in current and post-secondary environments;

(6) parent/family training and support, provided by qualified personnel with experience in Autism Spectrum Disorders (ASD), that, for example:

(A) provides a family with skills necessary for a child to succeed in the home/community setting;

(B) includes information regarding resources (for example: parent support groups, workshops, videos, conferences, and materials designed to increase parent knowledge of specific teaching/management techniques related to the child's curriculum); and

(C) facilitates parental carryover of in-home training (for example: strategies for behavior management and developing structured home environments and/or communication training so that parents are active participants in promoting the continuity of interventions across all settings);

(7) suitable staff-to-student ratio appropriate to identified activities and as needed to achieve social/behavioral progress based on the child's developmental and learning level (acquisition, fluency, maintenance, generalization) that encourages work towards individual independence as determined by, for example:

(A) adaptive behavior evaluation results;

(B) behavioral accommodation needs across settings; and

(C) transitions within the school day;

(8) communication interventions, including language forms and functions that enhance effective communication across settings (for example: augmentative, incidental, and naturalistic teaching);

(9) social skills supports and strategies based on social skills assessment/curriculum and provided across settings (for example: trained peer facilitators (e.g., circle of friends), video modeling, social stories, and role playing);

(10) professional educator/staff support (for example: training provided to personnel who work with the student to assure the correct implementation of techniques and strategies described in the IEP); and

(11) teaching strategies based on peer reviewed, research-based practices for students with ASD (for example: those associated with discrete-trial training, visual supports, applied behavior analysis, structured learning, augmentative communication, or social skills training).

(f) If the ARD committee determines that services are not needed in one or more of the areas specified in subsection (e)(1)-(11) of this section, the IEP must include a statement to that effect and the basis upon which the determination was made.

(g) For each student with a disability, beginning at age 16 (prior to the date on which a student turns 16 years of age) or younger, if determined appropriate by the ARD committee, the following issues must be considered in the development of the IEP, and, if appropriate, integrated into the IEP:

(1) appropriate student involvement in the student's transition to life outside the public school system;

(2) if the student is younger than 18 years of age, appropriate parental involvement in the student's transition;

(3) if the student is at least 18 years of age, appropriate parental involvement in the student's transition, if the parent is invited to participate by the student or the school district in which the student is enrolled;

(4) any postsecondary education options;

(5) a functional vocational evaluation;

(6) employment goals and objectives;

(7) if the student is at least 18 years of age, the availability of age-appropriate instructional environments;

(8) independent living goals and objectives; and

(9) appropriate circumstances for referring a student or the student's parents to a governmental agency for services.

Comments

Source Note: The provisions of this §89.1055 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1056: Transfer of Assistive Technology Devices

(a) Unless otherwise specifically defined in this section, the terms used in this section shall have the meanings ascribed to such terms in Texas Education Code (TEC), §30.0015, (Transfer of Assistive Technology Devices).

(b) A transfer of an assistive technology device (ATD) pursuant to TEC, §30.0015, shall be in accordance with a transfer agreement which incorporates the standards described in TEC, §30.0015(c), and which includes, specifically, the following.

(1) The transferor and transferee must represent and agree that the terms of the transfer are based on the fair market value of the ATD, determined in accordance with generally accepted accounting principles.

(2) The informed consent of the parent of the student with a disability for whom the ATD is being transferred must be obtained before the transfer of an ATD pursuant to TEC, §30.0015. The procedures employed by a school district in obtaining such informed consent shall be consistent with the procedures employed by the district to obtain parental consent under 34 Code of Federal Regulations (CFR), §300.300. If the student has the legal capacity to enter into a contract, the informed consent may be obtained from the student. Consistent with 34 CFR, §300.505(c), informed parental or adult student consent need not be obtained if the school district can demonstrate that it has taken reasonable measures to obtain that consent, and the student's parent or the adult student has failed to respond. To meet the reasonable measures requirement, the school district must use procedures consistent with those described in 34 CFR, §300.322(d).

(3) If the transfer is a sale, then the sale of the ATD shall be evidenced by a "Uniform Transfer Agreement" (UTA) which includes the following:

(A) the names of the transferor and the transferee (which may be any individual or entity identified in TEC, §30.0015(b));

(B) the date of the transfer;

(C) a description of the ATD being transferred;

(D) the terms of the transfer (including the transfer of warranties, to the extent applicable); and

(E) the signatures of authorized representatives of both the transferor and the transferee.

(c) The Texas Education Agency shall annually disseminate to school districts the standards for a school district's transfer of an ATD pursuant to TEC, §30.0015.

(d) Nothing in this section or in TEC, §30.0015, shall:

(1) alter any existing obligation under federal or state law to provide ATDs to students with disabilities;

(2) require a school district to transfer an ATD to any person or entity;

(3) limit a school district's right to sell, lease, loan, or otherwise convey or dispose of property as authorized by federal or state laws, rules, or regulations; or

(4) authorize any transfer of an ATD that is inconsistent with any restriction on transferability imposed by the manufacturer or developer of the ATD or applicable federal or state laws, rules, or regulations.

Comments

Source Note: The provisions of this §89.1056 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1065: Extended School Year Services (ESY Services)

Extended school year (ESY) services are defined as individualized instructional programs beyond the regular school year for eligible students with disabilities.

(1) The need for ESY services must be determined on an individual student basis by the admission, review, and dismissal (ARD) committee in accordance with 34 Code of Federal Regulations (CFR), §300.106, and the provisions of this section. In determining the need for and in providing ESY services, a school district may not:

(A) limit ESY services to particular categories of disability; or

(B) unilaterally limit the type, amount, or duration of ESY services.

(2) The need for ESY services must be documented from formal and/or informal evaluations provided by the district or the parents. The documentation shall demonstrate that in one or more critical areas addressed in the current individualized education program (IEP) objectives, the student has exhibited, or reasonably may be expected to exhibit, severe or substantial regression that cannot be recouped within a reasonable period of time. Severe or substantial regression means that the student has been, or will be, unable to maintain one or more acquired critical skills in the absence of ESY services.

(3) The reasonable period of time for recoupment of acquired critical skills shall be determined on the basis of needs identified in each student's IEP. If the loss of acquired critical skills would be particularly severe or substantial, or if such loss results, or reasonably may be expected to result, in immediate physical harm to the student or to others, ESY services may be justified without consideration of the period of time for recoupment of such skills. In any case, the period of time for recoupment shall not exceed eight weeks.

(4) A skill is critical when the loss of that skill results, or is reasonably expected to result, in any of the following occurrences during the first eight weeks of the next regular school year:

(A) placement in a more restrictive instructional arrangement;

(B) significant loss of acquired skills necessary for the student to appropriately progress in the general curriculum;

(C) significant loss of self-sufficiency in self-help skill areas as evidenced by an increase in the number of direct service staff and/or amount of time required to provide special education or related services;

(D) loss of access to community-based independent living skills instruction or an independent living environment provided by noneducational sources as a result of regression in skills; or

(E) loss of access to on-the-job training or productive employment as a result of regression in skills.

(5) If the district does not propose ESY services for discussion at the annual review of a student's IEP, the parent may request that the ARD committee discuss ESY services pursuant to 34 CFR, §300.321.

(6) If a student for whom ESY services were considered and rejected loses critical skills because of the decision not to provide ESY services, and if those skills are not regained after the reasonable period of time for recoupment, the ARD committee shall reconsider the current IEP if the student's loss of critical skills interferes with the implementation of the student's IEP.

(7) For students enrolling in a district during the school year, information obtained from the prior school district as well as information collected during the current year may be used to determine the need for ESY services.

(8) The provision of ESY services is limited to the educational needs of the student and shall not supplant or limit the responsibility of other public agencies to continue to provide care and treatment services pursuant to policy or practice, even when those services are similar to, or the same as, the services addressed in the student's IEP. No student shall be denied ESY services because the student receives care and treatment services under the auspices of other agencies.

(9) Districts are not eligible for reimbursement for ESY services provided to students for reasons other than those set forth in this section.

Comments

Source Note: The provisions of this §89.1065 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1070: Graduation Requirements

(a) Graduation with a regular high school diploma under subsection (b) or (d) of this section terminates a student's eligibility for special education services under this subchapter and Part B of the Individuals with Disabilities Education Act (IDEA), 20 United States Code, §§1400 et seq. In addition, as provided in Texas Education Code (TEC), §42.003(a), graduation with a regular high school diploma under subsection (b) or (d) of this section terminates a student's entitlement to the benefits of the Foundation School Program.

(b) A student receiving special education services may graduate and be awarded a regular high school diploma if:

(1) the student has satisfactorily completed the state's or district's (whichever is greater) minimum curriculum and credit requirements for graduation (under the recommended or distinguished achievement high school programs in Chapter 74 of this title (relating to Curriculum Requirements)) applicable to students in general education, including satisfactory performance on the exit level assessment instrument; or

(2) the student has satisfactorily completed the state's or district's (whichever is greater) minimum curriculum and credit requirements for graduation (under the minimum high school program in Chapter 74 of this title) applicable to students in general education, including participation in required state assessments. The student's admission, review, and dismissal (ARD) committee shall determine whether satisfactory performance on a required state assessment shall also be required for graduation.

(c) A student receiving special education services may also graduate and receive a regular high school diploma when the student's ARD committee has determined that the student has successfully completed:

(1) the student's individualized education program (IEP);

(2) one of the following conditions, consistent with the student's IEP:

(A) full-time employment, based on the student's abilities and local employment opportunities, in addition to sufficient self-help skills to enable the student to maintain the employment without direct and ongoing educational support of the local school district;

(B) demonstrated mastery of specific employability skills and self-help skills which do not require direct ongoing educational support of the local school district; or

(C) access to services which are not within the legal responsibility of public education, or employment or educational options for which the student has been prepared by the academic program;

(3) the state's or district's (whichever is greater) minimum credit requirements for students without disabilities; and

(4) the state's or district's minimum curriculum requirements to the extent possible with modifications/substitutions only when it is determined necessary by the ARD committee for the student to receive an appropriate education.

(d) A student receiving special education services may also graduate and receive a regular high school diploma upon the ARD committee determining that the student no longer meets age eligibility requirements and has completed the requirements specified in the IEP.

(e) All students graduating under this section shall be provided with a summary of academic achievement and functional performance as described in 34 Code of Federal Regulations (CFR), §300.305(e)(3). This summary shall consider, as appropriate, the views of the parent and student and written recommendations from adult service agencies on how to assist the student in meeting postsecondary goals. An evaluation as required by 34 CFR, §300.305(e)(1), shall be included as part of the summary for a student graduating under subsection (c) of this section.

(f) Students who participate in graduation ceremonies but who are not graduating under subsection (c) of this section and who will remain in school to complete their education do not have to be evaluated in accordance with subsection (e) of this section.

(g) Employability and self-help skills referenced under subsection (c) of this section are those skills directly related to the preparation of students for employment, including general skills necessary to obtain or retain employment.

(h) For students who receive a diploma according to subsection (c) of this section, the ARD committee shall determine needed educational services upon the request of the student or parent to resume services, as long as the student meets the age eligibility requirements.

Comments

Source Note: The provisions of this §89.1070 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1075: General Program Requirements and Local District Procedures

(a) Each school district shall maintain an eligibility folder for each student receiving special education services, in addition to the student's cumulative record. The eligibility folder must include, but need not be limited to: copies of referral data; documentation of notices and consents; evaluation reports and supporting data; admission, review, and dismissal (ARD) committee reports; and the student's individualized education programs (IEPs).

(b) For school districts providing special education services to students with visual impairments, there shall be written procedures as required in the Texas Education Code (TEC), §30.002(c)(10).

(c) Each school district shall have procedures to ensure that each teacher involved in a student's instruction has the opportunity to provide input and request assistance regarding the implementation of the student's IEP. These procedures must include a method for a student's regular or special education teachers to submit requests for further consideration of the student's IEP or its implementation. In response to this request, the district's procedures shall include a method for the district to determine whether further consideration is necessary and whether this consideration will be informal or will require an ARD committee meeting. If the district determines that an ARD committee meeting is necessary, the student's current regular and special education teachers shall have an opportunity to provide input. The school district shall also ensure that each teacher who provides instruction to a student with disabilities receives relevant sections of the student's current IEP and that each teacher be informed of specific responsibilities related to implementing the IEP, such as goals and benchmarks, and of needed accommodations, modifications, and supports for the child.

(d) Students with disabilities shall have available an instructional day commensurate with that of students without disabilities. The ARD committee shall determine the appropriate instructional setting and length of day for each student, and these shall be specified in the student's IEP.

(e) School districts that jointly operate their special education programs as a shared services arrangement, in accordance with TEC, §29.007, shall do so in accordance with procedures developed by the Texas Education Agency (TEA).

(f) School districts that contract for services from non-public day schools shall do so in accordance with 34 Code of Federal Regulations, §300.147, and procedures developed by the TEA.

Comments

Source Note: The provisions of this §89.1075 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1076: Interventions and Sanctions

The Texas Education Agency (TEA) shall establish and implement a system of interventions and sanctions, in accordance with the Individuals with Disabilities Education Act, 20 United States Code, §§1400 et seq., Texas Education Code (TEC), §29.010, and TEC, Chapter 39, as necessary to ensure program effectiveness and compliance with federal and state requirements regarding the implementation of special education and related services. In accordance with TEC, §39.131(a), the TEA may combine any intervention and sanction. The system of interventions and sanctions will include, but not be limited to, the following:

(1) on-site review for failure to meet program or compliance requirements;

(2) required fiscal audit of specific program(s) and/or of the district, paid for by the district;

(3) required submission of corrective action(s), including compensatory services, paid for by the district;

(4) required technical assistance, paid for by the district;

(5) public release of program or compliance review findings;

(6) special investigation and/or follow-up verification visits;

(7) required public hearing conducted by the local school board of trustees;

(8) assignment of a special purpose monitor, conservator, or management team, paid for by the district;

(9) hearing before the commissioner of education or designee;

(10) reduction in payment or withholding of funds;

(11) lowering of the special education monitoring/compliance status and/or the accreditation rating of the district; and/or

(12) other authorized interventions and sanctions as determined by the commissioner.

Comments

Source Note: The provisions of this §89.1076 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1080: Regional Day School Program for the Deaf

In accordance with the Texas Education Code (TEC), §§30.081-30.087, local school districts shall have access to regional day school programs for the deaf operated by school districts at sites previously established by the State Board of Education (SBOE). Any student who has a hearing impairment which severely impairs processing linguistic information through hearing, even with recommended amplification, and which adversely affects educational performance shall be eligible for consideration for the Regional Day School Program for the Deaf, subject to the admission, review, and dismissal (ARD) committee recommendations.

Comments

Source Note: The provisions of this §89.1080 adopted to be effective September 1, 1996, 21 TexReg 7240.

§89.1085: Referral for the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf Services

(a) A student's admission, review, and dismissal (ARD) committee may place the student at the Texas School for the Blind and Visually Impaired (TSBVI) or the Texas School for the Deaf (TSD) in accordance with the provisions of 34 Code of Federal Regulations (CFR), Part 300, the Texas Education Code (TEC), including, specifically, §§30.021, 30.051, and 30.057, and the applicable rules of this subchapter.

(b) In the event that a student is placed by his or her ARD committee at either the TSBVI or the TSD, the student's "resident school district," as defined in subsection (e) of this section, shall be responsible for assuring that a free appropriate public education (FAPE) is provided to the student at the TSBVI or the TSD, as applicable, in accordance with the Individuals with Disabilities Education Act (IDEA), 20 United States Code (USC), §§1400 et seq., 34 CFR, Part 300, state statutes, and rules of the State Board of Education (SBOE) and the commissioner of education. If representatives of the resident school district and representatives of the TSBVI or the TSD disagree, as members of a student's ARD committee, with respect to a recommendation by one or more members of the student's ARD committee that the student be evaluated for placement, initially placed, or continued to be placed at the TSBVI or TSD, as applicable, the representatives of the resident school district and the TSBVI or TSD, as applicable, may seek resolution through the mediation procedures adopted by the Texas Education Agency or through any due process hearing to which the resident school district or the TSBVI or the TSD are entitled under the IDEA, 20 USC, §§1400, et seq.

(c) When a student's ARD committee places the student at the TSBVI or the TSD, the student's resident school district shall comply with the following requirements.

(1) For each student, the resident school district shall list those services in the student's individualized education program (IEP) which the TSBVI or the TSD can appropriately provide.

(2) The district may make an on-site visit to verify that the TSBVI or the TSD can and will offer the services listed in the individual student's IEP and to ensure that the school offers an appropriate educational program for the student.

(3) For each student, the resident school district shall include in the student's IEP the criteria and estimated time lines for returning the student to the resident school district.

(d) In addition to the provisions of subsections (a)-(c) of this section, and as provided in TEC, §30.057, the TSD shall provide services in accordance with TEC, §30.051, to any eligible student with a disability for whom the TSD is an appropriate placement if the student has been referred for admission by the student's parent or legal guardian, a person with legal authority to act in place of the parent or legal guardian, or the student, if the student is age 18 or older, at any time during the school year if the referring person chooses the TSD as the appropriate placement for the student rather than placement in the student's resident school district or regional program determined by the student's ARD committee. For students placed at the TSD pursuant to this subsection, the TSD shall be responsible for assuring that a FAPE is provided to the student at the TSD, in accordance with IDEA, 20 USC, §§1400, et seq., 34 CFR, Part 300, state statutes, and rules of the SBOE and the commissioner of education.

(e) For purposes of this section and §89.1090 of this title (relating to Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf), the "resident school district" is the school district in which the student would be enrolled under TEC, §25.001, if the student were not placed at the TSBVI or the TSD.

Comments

Source Note: The provisions of this §89.1085 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1090: Transportation of Students Placed in a Residential Setting, Including the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf

For each student placed in a residential setting by the student's admission, review, and dismissal (ARD) committee, including those students placed in the Texas School for the Blind and Visually Impaired and the Texas School for the Deaf, the resident school district shall be responsible for transportation at the beginning and end of the term and for regularly scheduled school holidays when students are expected to leave the residential campus. The resident school district is not responsible for transportation costs for students placed in residential settings by their parents. Transportation costs shall not exceed state approved per diem and mileage rates unless excess costs can be justified and documented. Transportation shall be arranged using the most cost efficient means. When it is necessary for the safety of the student, as determined by the ARD committee, for an adult designated by the ARD committee to accompany the student, round-trip transportation for that adult shall also be provided. The resident school district and the residential facility shall coordinate to ensure that students are transported safely, including the periods of departure and arrival.

Comments

Source Note: The provisions of this §89.1090 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1096: Provision of Services for Students Placed by their Parents in Private Schools or Facilities

(a) Except as specifically provided in this section, in accordance with 34 Code of Federal Regulations (CFR), §300.137, no eligible student who has been placed by his or her parent(s) in a private school or facility has an individual right to receive some or all of the special education and related services that the student would receive if he or she were enrolled in a public school district. Except as specifically set forth in this section, a school district's obligations with respect to students placed by their parents in private schools are governed by 34 CFR, §§300.130-300.144.

(1) For purposes of subsections (a) and (d) of this section only, private school is defined as a private elementary or secondary school, including any pre-school, religious school, and institutional day or residential school, that:

(A) as required by 34 CFR, §300.13 and §300.130, is a nonprofit entity that meets the definition of nonprofit in 34 CFR, §77.1; and

(B) provides elementary or secondary education that incorporates an adopted curriculum designed to meet basic educational goals, including scope and sequence of courses, and formal review and documentation of student progress.

(2) A home school must meet the requirements of paragraph (1)(B) of this subsection, but not paragraph (1)(A) of this subsection, to be considered a private school for purposes of subsections (a) and (d) of this section.

(b) When a student with a disability who has been placed by his or her parents directly in a private school or facility is referred to the local school district, the local district shall convene an admission, review, and dismissal (ARD) committee meeting to determine whether the district can offer the student a free appropriate public education (FAPE). If the district determines that it can offer a FAPE to the student, the district is not responsible for providing educational services to the student, except as provided in 34 CFR, §§300.130-300.144, or subsection (e) of this section, until such time as the parents choose to enroll the student in public school full time.

(c) Parents of an eligible student ages 3 or 4 shall have the right to "dual enroll" their student in both the public school and the private school beginning on the student's third birthday and continuing until the end of the school year in which the student turns five or until the student is eligible to attend a district's public school kindergarten program, whichever comes first, subject to paragraphs (1)-(3) of this subsection. The public school district where a student resides is responsible for providing special education and related services to a student whose parents choose dual enrollment.

(1) The student's ARD committee shall develop an individualized education program (IEP) designed to provide the student with a FAPE in the least restrictive environment appropriate for the student.

(2) From the IEP, the parent and the district shall determine which special education and/or related services will be provided to the student and the location where those services will be provided, based on the requirements concerning placement in the least restrictive environment set forth in 34 CFR, §§300.114-300.120, and the policies and procedures of the district.

(3) For students served under the provisions of this subsection, the school district shall be responsible for the employment and supervision of the personnel providing the service, providing the needed instructional materials, and maintaining pupil accounting records. Materials and services provided shall be consistent with those provided for students enrolled only in the public school and shall remain the property of the school district.

(d) Parents of an eligible student ages 3 or 4 who decline dual enrollment for their student may request a services plan as described in 34 CFR, §§300.130-300.144. The public school district where the private school is located is responsible for the development of a services plan, if the student is designated to receive services under 34 CFR, §300.132.

(e) The school district shall provide special transportation with federal funds only when the ARD committee determines that the condition of the student warrants the service in order for the student to receive the special education and related services (if any) set forth in the IEP.

(f) Complaints regarding the implementation of the components of the student's IEP that have been selected by the parent and the district under subsection (c) of this section may be filed with the Texas Education Agency under the procedures in 34 CFR, §§300.151-300.153. Additionally, parents may request mediation as outlined in 34 CFR, §300.506. The procedures in 34 CFR, §§300.300, 300.504, 300.507, 300.508, and 300.510-300.518 (relating to due process hearings) do not apply to complaints regarding the implementation of the components of the student's IEP that have been selected by the parent and the district under subsection (c).

Comments

Source Note: The provisions of this §89.1096 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective June 7, 2004, 29 TexReg 5608; amended to be effective November 11, 2007, 32 TexReg 8129

Division 3

§89.1100: Memorandum of Understanding on Coordination of Services to Disabled Persons

Clarification of financial and service responsibilities of the Texas Department of Human Services, the Texas Department of Health, the Texas Department of Mental Health and Mental Retardation, the Texas Rehabilitation Commission, the Texas Commission for the Blind, the Texas Commission for the Deaf, Texas Department of Protective and Regulatory Services, Texas Interagency Council on Early Childhood Intervention, and the Texas Education Agency related to disabled persons are contained in the Memorandum of Understanding on Coordination of Services to Disabled Persons, which is adopted by reference as a rule of the Texas Education Agency. The complete text of the memorandum of understanding may be found in the rules of the Texas Department of Human Services, 40 Texas Administrative Code (TAC) Chapter 72. A copy of the memorandum of understanding is available for examination during regular office hours, 8:00 a.m. to 5:00 p.m., except holidays, Saturdays, and Sundays, at the Texas Education Agency, 1701 North Congress Avenue, Austin, Texas 78701.

Comments

Source Note: The provisions of this §89.1100 adopted to be effective September 1, 1996, 21 TexReg 7240

§89.1115: Memorandum of Understanding Concerning Interagency Coordination of Special Education Services to Students with Disabilities in Residential Facilities

(a) Parties. The state agencies named in this subsection are parties to this memorandum of understanding (MOU) and will be collectively referred to as the "parties." The term "Health and Human Service (HHS) agencies" will refer to all parties except the Texas Education Agency, Texas Juvenile Probation Commission, and Texas Youth Commission.

(1) Texas Education Agency (TEA);

(2) Texas Department of Human Services (TDHS);

(3) Texas Department of Mental Health and Mental Retardation (TDMHMR);

(4) Texas Department of Health (TDH);

(5) Texas Department of Protective and Regulatory Services (PRS);

(6) Texas Interagency Council on Early Childhood Intervention (ECI);

(7) Texas Commission on Alcohol and Drug Abuse (TCADA);

(8) Texas Juvenile Probation Commission (TJPC); and

(9) Texas Youth Commission (TYC).

(b) Purpose. In accordance with Texas Education Code (TEC),§29.012(d), the purpose of this MOU is to:

(1) establish the respective responsibilities of school districts and of residential facilities (RFs) for the provision of a free appropriate public education (FAPE), as required by the Individuals with Disabilities Education Act (IDEA)(20 USC §1400 et seq.) and its subsequent amendments, including each requirement for children with disabilities who reside in those facilities;

(2) coordinate regulatory and planning functions of the parties;

(3) establish criteria for determining when a public school will provide educational services;

(4) provide for appropriate educational space when education services will be provided at the residential facility;

(5) establish measures designed to ensure the safety of students and teachers; and

(6) provide for binding arbitration consistent with Texas Government Code, Chapter 2009, and Civil Practice and Remedies Code, §154.027.

(c) Definitions. The following words and terms, when used in this MOU, shall have the following meaning, unless the context clearly indicates otherwise.

(1) Consistent with TEC, §5.001(8), "residential facility" (RF) means:

(A) a facility operated by a state agency or political subdivision, including a child placement agency, that provides 24-hour custody or care of a person 22 years of age or younger, if the person resides in the facility for detention, treatment, foster care, or any non-educational purpose; and

(B) any person or entity that contracts with or is funded, licensed, certified, or regulated by a state agency or political subdivision to provide custody or care for a person under subparagraph (A) of this paragraph. RFs include, but are not limited to:

(i) child care facilities or institutions;

(ii) independent foster group homes providing basic, therapeutic or rehabilitative services;

(iii) independent foster family homes providing basic, therapeutic or rehabilitative services;

(iv) agency foster family/group homes verified by a child placing agency licensed by PRS;

(v) intermediate care facilities for the mentally retarded (ICFs-MR);

(vi) psychiatric treatment centers;

(vii) therapeutic camps or ranches;

(viii) residential treatment centers licensed by PRS;

(ix) nursing facilities;

(x) TYC halfway houses and contract facilities;

(xi) emergency shelters;

(xii) hospitals;

(xiii) juvenile pre-adjudication detention facilities;

(xiv) juvenile post-adjudication secure correctional facilities;

(xv) residential facilities funded and/or licensed by TCADA;

(xvi) settings other than the student's natural or adoptive home in which residential services are provided in programs authorized by the Social Security Act, §1915(c); and

(xvii) state hospitals, state schools, and state centers operated by TDMHMR.

(2) "Student with a disability" means an individual who is eligible to receive special education and related services in accordance with IDEA and its implementing regulations, Code of Federal Regulations, Title 34, §§300.1 et seq., and state laws and rules, including, without limitation, TEC, Chapter 29, and Chapter 89 of this title (relating to Adaptations for Special Populations).

(3) Consistent with 20 USC §1401(8), "free appropriate public education" (FAPE) means special education and related services that:

(A) are provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of TEA;

(C) include preschool, elementary, or secondary school education; and

(D) are provided in conformity with the student's individualized education program (IEP).

(4) Consistent with 20 U. S. C. §1401(15), "local educational agency" (LEA) means any public authority, institution, or agency having administrative control and direction of a public elementary or secondary school, including a public charter school that is established as an LEA under state law.

(d) Terms of MOU. The parties agree to the following terms:

(1) The responsibilities of LEAs and RFs related to the provision of a FAPE to students with disabilities who reside in RFs are established as follows.

(A) LEAs must provide or ensure the provision of a FAPE to students with disabilities residing in RFs in accordance with IDEA, applicable federal regulations, and state laws and rules.

(i) Except as provided in paragraph (2) of this subsection, an LEA must provide or ensure the provision of a FAPE for a student with a disability residing in an RF located in the geographical area served by that LEA.

(ii) If an LEA places a student with a disability in an RF for educational purposes, the placing LEA must provide or ensure the provision of a FAPE to the student.

(B) Not later than the third day after the date a person 22 years of age or younger is placed in an RF, the RF must provide notification in accordance with TEC, §29.012(a), as follows:

(i) if the person placed in the RF is three years of age or older, the RF must notify the LEA in which the RF is located, unless the RF is an open-enrollment charter school or the RF has been designated as an LEA (e.g., TYC correctional facilities, Texas School for the Deaf, the University of Texas Medical Branch); or

(ii) if the person placed in the RF is younger than three years of age, the RF must notify a local early childhood intervention program in the area in which the RF is located.

(2) Regulatory and planning functions of the parties are coordinated as follows.

(A) The parties will require LEAs and RFs to:

(i) share, within a reasonable period of time and to the extent permitted by applicable statutes and regulations, all appropriate records and relevant information relating to a student with a disability. This subsection does not authorize the LEA to modify requirements for admission and enrollment into an LEA as set forth in TEC, Chapter 25. The records and information to be shared may include, but are not limited to:

(I) birth certificate or other identifying document that proves the student's age;

(II) medical history and medical records, including current immunization records and a history of infectious disease (e.g., Hepatitis B, tuberculosis), including a description of any behavioral characteristics related to the transmission of such disease;

(III) social history;

(IV) vision and hearing screening and evaluation;

(V) evaluation reports, including psychological, educational, related service, assistive technology and vocational evaluations, and behavioral assessments;

(VI) treatment plan of care or service;

(VII) educational history (e.g., previous educational placement information);

(VIII) any relevant court orders (e.g., orders related to placement in an RF, guardianship or conservatorship, or court-ordered services);

(IX) information regarding a student's movement from an RF to a subsequent residence, including but not limited to the date the student left the RF and the location of the student's subsequent residence; and

(X) name and phone number of contact persons representing the RF and the LEA; and

(ii) coordinate a student's individualized education program (IEP) and treatment plan of care or service. Coordination between an LEA and RF includes but is not limited to communication about responsibilities and timelines related to the development and implementation of the IEP and treatment plan, including permanency planning.

(B) TEA will require LEAs to provide:

(i) the name and phone number of the contact person representing the RF to the surrogate parent, upon assignment of the surrogate parent;

(ii) the name and phone number of the surrogate parent, upon assignment of the surrogate parent, to the contact person representing the RF; and

(iii) designation and training of surrogate parents in accordance with §89.1047 of this title (relating to Procedures for Surrogate and Foster Parents).

(C) TYC and the HHS agencies will provide the following notifications to TEA.

(i) TYC and the HHS agencies, other than PRS, will notify TEA when an RF opens, closes, expands, or reduces its capacity to provide services, if the notifying agency expects such action will have a significant effect on one or more LEAs. The notice will be provided to TEA before the RF opens, closes, expands, or reduces its capacity to provide services, or as soon thereafter as the notifying agency becomes aware of the action. If an RF is closing, the notifying TYC or HHS agency will request that the RF attempt to obtain any consent necessary to release to TEA and an LEA, information about a student with a disability residing in the RF, including the student's name, date of birth, social security number, disability, and name of the LEA to which the student will be moving. TEA will notify the affected LEA of the expected action so the LEA can adjust its capacity to serve students with disabilities.

(ii) PRS will provide TEA with a copy of the notice required by Texas Human Resources Code, §42.0461(a)(2). Additionally, PRS and TEA will explore possible use of PRS' Child Care Licensing Automation Support Services management system to generate information that may assist TEA in its effort to notify LEAs when an RF opens, closes, expands, or reduces its capacity to provide services.

(3) Criteria for determining when a public school will provide educational services are established as follows.

(A) TEA will ensure that the local school district provides a FAPE to all eligible students with disabilities, in the least restrictive environment (LRE), to the maximum extent appropriate, to meet the individual educational needs of the student as determined by a duly-constituted admission, review, and dismissal (ARD) committee, and in accordance with §89.1001 of this title (relating to Scope and Applicability).

(B) The student's ARD committee must determine the appropriate educational placement for the student, considering all available information regarding the educational needs of the student, and including the non-educational needs that may restrict the ability of the LEA to serve the student on a public school campus or other instructional setting. These non-educational needs could include the student's health and safety (e.g. substance abuse), and/or the student's placement in a restrictive RF program (e.g., juvenile incarceration or restrictive court-ordered placements). The ARD committee's determination must be individualized based on student need and not made on a categorical basis, such as the student's disability or residence in an RF. Further, ARD committees must not determine educational placement on the basis of what is most convenient to LEAs or RFs.

(4) When educational services will be provided at an RF, appropriate educational space will be determined as follows.

(A) The ARD committee must determine whether space available at the RF is appropriate for the provision of a FAPE. This determination must be based on the individual student's needs and the RF's available space.

(B) An ARD committee must find alternative locations for providing educational services if the ARD committee or RF determines that the RF has no appropriate available space.

(5) Measures designed to ensure the safety of students and teachers are established as follows.

(A) The parties will require RFs and LEAs to agree in writing to the staffing levels that will be maintained by both the RF and the LEA to ensure the safety of students and teachers while educational services are provided at an RF.

(B) TYC, TJPC, and HHS agencies will require RFs to communicate to LEA staff applicable safety, emergency, and security procedures to be followed while educational services are provided at an RF.

(6) Disputes concerning the implementation of this MOU will be resolved as follows.

(A) Local disputes. Resolution of disputes concerning implementation of this MOU between LEAs or between an LEA and an RF shall first be attempted at the local level. The specific issues involved in the dispute and possible solutions shall be identified and referred to local personnel authorized to make decisions necessary to resolve the dispute. If resolution is not reached after a reasonable period of time (not to exceed 45 calendar days unless the disputing entities agree otherwise), the LEA shall refer (and the RF may refer) the dispute to TEA for further negotiations toward a mutually agreeable resolution. TEA will contact the disputing entities and set up a meeting for this purpose. Local entities referring disputes to TEA shall identify:

(i) the nature of the dispute;

(ii) any resolutions agreed upon;

(iii) the issues that remain unresolved; and

(iv) the contact persons representing the disputing entities.

(B) State agency disputes. Resolution of disputes concerning implementation of this MOU between two or more parties must first be attempted at the staff level. If resolution is not reached after a reasonable period of time (not to exceed 45 calendar days unless the disputing parties agree otherwise), the disputing parties will refer the dispute to their respective executive officers, or their designees for further negotiation. The appropriate state officials shall meet to seek resolution of the dispute.

(i) Mediation. If the chief executive officers of the disputing parties determine that the dispute cannot be resolved at their level, the disputing parties may pursue resolution through the use of mediation pursuant to the Governmental Dispute Resolution Act, Texas Government Code, Chapter 2009.

(ii) Arbitration. If the disputing parties do not agree to pursue resolution of their dispute through mediation, or if mediation does not result in a resolution of their dispute, the disputing parties will participate in binding arbitration consistent with Texas Government Code, Chapter 2009, and Texas Civil Practice and Remedies Code, §154.027.

(7) Other terms of this MOU.

(A) This MOU shall be signed by the executive officers of the participating agencies and shall be effective upon signature by all.

(B) This MOU may be considered for expansion, modification, or amendment upon mutual agreement of the executive officers of the participating agencies.

(C) In the event that federal and/or state laws should be amended, federally interpreted, or judicially interpreted so as to render continued implementation of this MOU unreasonable or impossible, the participating agencies may agree to amend or terminate this MOU.

Division 4

§89.1121: Distribution of State Funds

(a) Procedures for counting the average daily attendance (ADA) of students receiving special education services in various instructional settings shall be developed by the commissioner of education and included in the daily register for pupil attendance accounting.

(b) State special education funds shall be distributed to school districts on the basis of ADA of full-time equivalents of eligible students served in accordance with §129.21 of this title (relating to Requirements for Student Attendance Accounting for State Funding Purposes).

(c) The special education attendance shall be converted to contact hours by instructional arrangement and then to full-time equivalents. The full-time equivalent for each instructional arrangement is multiplied by the school district's adjusted basic allotment and then multiplied by the weight for the instructional arrangement as prescribed in the Texas Education Code (TEC), §42.151(a). Contact hours for any one student receiving special education services may not exceed six hours per day or 30 hours per week for funding purposes. The total contact hours generated per week shall be divided by 30 to determine the full-time equivalents. Special education full-time equivalents generated shall be deducted from the school district's ADA for purposes of the regular education allotment.

(d) The receipt of special education funds shall be contingent upon the operation of an approved comprehensive special education program in accordance with state and federal laws and regulations. No district may divert special education funds for other purposes, with the exception of administrative costs as defined in Chapter 105, Subchapter B, of this title (relating to Maximum Indirect Cost Allowable on Certain Foundation School Program Allotments). Funds generated by full-time equivalents in one instructional arrangement may be spent on the overall special education program and are not limited to the instructional arrangement which generated the funds. The district must maintain separate accountability for the total state special education program fund within the general fund.

(e) A special education fund balance may be carried over to the next fiscal year but must be expended on the special education program in the subsequent year. State special education carryover funds cannot be used for administrative costs.

(f) Students who are at least three, but younger than 22, years of age on September 1 of the current scholastic year who participate in the regional day school program for the deaf may be counted as part of the district's ADA if they receive instruction from the basic program for at least 50% of the school day.

(g) Students from birth through age two with a visual or auditory impairment or both who are provided services by the district according to an individual family services plan (IFSP) shall be enrolled on the district home or regional day school campus and shall be considered eligible for ADA on the same basis as other students receiving special education services.

(h) Funding for the mainstream special education instructional arrangement shall be based on the average daily attendance of the students in the arrangement multiplied by the adjusted basic allotment/adjusted allotment (ABA/AA) and the 1.1 weight. The attendance shall not be converted to contact hours/full-time equivalents as with the other instructional arrangements.

Comments

Source Note: The provisions of this §89.1121 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837

§89.1125: Allowable Expenditures of State Special Education Funds

(a) Persons paid from special education funds shall be assigned to instructional or other duties in the special education program and/or to provide support services to the regular education program in order for students with disabilities to be included in the regular program. Support services shall include, but not be limited to, collaborative planning, co-teaching, small group instruction with special and regular education students, direct instruction to special education students, or other support services determined necessary by the admission, review, and dismissal (ARD) committee for an appropriate program for the student with disabilities. Assignments may include duties supportive to school operations equivalent to those assigned to regular education personnel.

(b) Personnel assigned to provide support services to the regular education program as stated in subsection (a) of this section may be fully funded from special education funds.

(c) If personnel are assigned to special education on less than a full-time basis, except as stated in subsection (a) of this section, only that portion of time for which the personnel are assigned to students with disabilities shall be paid from state special education funds.

(d) State special education funds may be used for special materials, supplies, and equipment which are directly related to the development and implementation of individualized education programs (IEPs) of students and which are not ordinarily purchased for the regular classroom. Office and routine classroom supplies are not allowable. Special equipment may include instructional and assistive technology devices, audiovisual equipment, computers for instruction or assessment purposes, and assessment equipment only if used directly with students.

(e) State special education funds may be used to contract with consultants to provide staff development, program planning and evaluation, instructional services, assessments, and related services to students with disabilities.

(f) State special education funds may be used for transportation only to and from residential placements. Prior to using federal funds for transportation costs to and from a residential facility, a district must use state or local funds based on actual expenses up to the state transportation maximum for private transportation contracts.

(g) State special education funds may be used to pay staff travel to perform services directly related to the education of eligible students with disabilities. Funds may also be used to pay travel of staff (including administrators, general education teachers, and special education teachers and service providers) to attend staff development meetings for the purpose of improving performance in assigned positions directly related to the education of eligible students with disabilities. In no event shall the purpose for attending such staff development meetings include time spent in performing functions relating to the operation of professional organizations. Funds may also be used to pay for the joint training of parents and special education, related services, and general education personnel.

Comments

Source Note: The provisions of this §89.1125 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

Division 5

§89.1131: Qualifications of Special Education, Related Service, and Paraprofessional Personnel

(a) All special education and related service personnel shall be certified, endorsed, or licensed in the area or areas of assignment in accordance with 34 Code of Federal Regulations (CFR), §300.156; the Texas Education Code (TEC), §§21.002, 21.003, and 29.304; or appropriate state agency credentials.

(b) A teacher who holds a special education certificate or an endorsement may be assigned to any level of a basic special education instructional program serving eligible students 3-21 years of age, as defined in §89.1035(a) of this title (relating to Age Ranges for Student Eligibility), in accordance with the limitation of their certification, except for the following.

(1) Persons assigned to provide speech therapy instructional services must hold a valid Texas Education Agency (TEA) certificate in speech and hearing therapy or speech and language therapy, or a valid state license as a speech/language pathologist.

(2) Teachers holding only a special education endorsement for early childhood education for children with disabilities shall be assigned only to programs serving infants through Grade 6.

(3) Teachers certified in the education of students with visual impairments must be available to students with visual impairments, including deaf-blindness, through one of the school district's instructional options, a shared services arrangement with other school districts, or an education service center (ESC).

(4) Teachers certified in the education of students with auditory impairments must be available to students with auditory impairments, including deaf-blindness, through one of the school district's instructional options, a regional day school program for the deaf, or a shared services arrangement with other school districts.

(5) The following provisions apply to physical education.

(A) When the ARD committee has made the determination and the arrangements are specified in the student's individualized education program (IEP), physical education may be provided by the following personnel:

(i) special education instructional or related service personnel who have the necessary skills and knowledge;

(ii) physical education teachers;

(iii) occupational therapists;

(iv) physical therapists; or

(v) occupational therapy assistants or physical therapy assistants working under supervision in accordance with the standards of their profession.

(B) When these services are provided by special education personnel, the district must document that they have the necessary skills and knowledge. Documentation may include, but need not be limited to, inservice records, evidence of attendance at seminars or workshops, or transcripts of college courses.

(6) Teachers assigned full-time or part-time to instruction of students from birth through age two with visual impairments, including deaf-blindness, shall be certified in the education of students with visual impairments. Teachers assigned full-time or part-time to instruction of students from birth through age two who are deaf, including deaf-blindness, shall be certified in education for students who are deaf and severely hard of hearing.

(7) Teachers with secondary certification with the generic delivery system may be assigned to teach Grades 6-12 only.

(c) Paraprofessional personnel must be certified and may be assigned to work with eligible students, general and special education teachers, and related service personnel. Aides may also be assigned to assist students with special education transportation, serve as a job coach, or serve in support of community-based instruction. Aides paid from state administrative funds may be assigned to the Special Education Resource System (SERS), the Special Education Management System (SEMS), or other special education clerical or administrative duties.

(d) Interpreting services for students who are deaf shall be provided by an interpreter who is certified in the appropriate language mode(s), if certification in such mode(s) is available. If certification is available, the interpreter must be a certified member of or certified by the Registry of Interpreters for the Deaf (RID) or the Texas Board for Evaluation of Interpreters (BEI), Department of Assistive and Rehabilitative Services (DARS), Office for Deaf and Hard of Hearing Services (DHHS).

(e) Orientation and mobility instruction must be provided by a certified orientation and mobility specialist (COMS) who is certified by the Academy for Certification of Vision Rehabilitation and Education Professionals.

Comments

Source Note: The provisions of this §89.1131 adopted to be effective September 1, 1996, 21 TexReg 7240; amended to be effective March 6, 2001, 26 TexReg 1837; amended to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 11, 2007, 32 TexReg 8129

Division 6

§89.1141: Education Service Center Regional Special Education Leadership

(a) Each regional education service center (ESC) will provide leadership, training, and technical assistance in the area of special education for students with disabilities in accordance with the Texas Education Agency's (TEA) focus on increasing student achievement and Texas Education Code (TEC), §8.051(d)(2) and (5), and will assist TEA in the implementation of 34 Code of Federal Regulations (CFR) §300.119.

(b) Each regional ESC will provide technical assistance, support, and training in the area of special education to school districts based on the results of a comprehensive needs assessment process. Each regional ESC will continue to serve as first point of contact for school districts, parents, and other community stakeholders, and will provide for the joint training of parents and special education, related services, and general education personnel.

(c) Regional ESC activities and responsibilities will be in accordance with current instructions, program guidelines, and program descriptions included in the ESC Performance Contract and Application, which will be made accessible to the public through the TEA website.

(d) The ESC must utilize available TEA funding to implement activities and address needs identified under subsections (a)-(c) of this section. If additional funding is needed to implement supplementary or enhanced activities identified through the regional needs assessment process, ESCs may access and utilize alternate sources of funding. Any charges must be determined only after priorities have been established through input from affected school districts, including data collected from parents and communities through partnerships with school districts.

(e) When an ESC provides leadership, training, and support pertaining to education and related services for students with visual impairments, directly or through contract, the personnel providing such services must be appropriately certified as identified in current program guidelines included in the ESC Performance Contract and Application, regardless of the fund source used to fund the service/personnel.

(f) Regional ESCs may serve as fiscal agent for shared services arrangements in accordance with procedures established under §89.1075(e) of this title (relating to General Program Requirements and Local District Procedures).

(g) For the purposes of this subchapter, ESCs shall be considered to be educational service agencies as defined in federal regulations.

Comments

Source Note: The provisions of this §89.1141 adopted to be effective August 1, 2002, 27 TexReg 3061; amended to be effective November 11, 2007, 32 TexReg 8129

Division 7

§89.1150: General Provisions

(a) From time to time, disputes may arise between a parent and a school district relating to the identification, evaluation, or educational placement of or the provision of a free appropriate public education (FAPE), to a student with a disability.

(b) It is the policy and intent of the Texas Education Agency (TEA) to encourage and support the resolution of any dispute described in subsection (a) of this section at the lowest level possible and in a prompt, efficient, and effective manner.

(c) The possible options for resolving disputes include, but are not limited to:

(1) meetings of the student's admission, review, and dismissal committee;

(2) meetings or conferences with the student's teachers;

(3) meetings or conferences, subject to local school district policies, with campus administrator(s), the special education director of the district (or the shared services arrangement to which the district may be a party), the superintendent of the district, or the board of trustees of the district;

(4) requesting mediation through the TEA in accordance with the Individuals with Disabilities Education Act (IDEA), 20 United States Code (USC), §1415(e), and 34 Code of Federal Regulations (CFR), §300.506;

(5) filing a complaint with the TEA in accordance with 34 CFR, §300.153; or

(6) requesting a due process hearing through the TEA in accordance with IDEA, 20 USC, §1415(f), and 34 CFR, §§300.507-300.514. Upon the filing of a request for a due process hearing, the parent and the school district shall also be provided with an opportunity to resolve the dispute through the mediation process established by TEA.

Comments

Source Note: The provisions of this §89.1150 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1151: Due Process Hearings

(a) A parent or public education agency may initiate a due process hearing as provided in the Individuals with Disabilities Education Act (IDEA), Part B, as amended, 20 United States Code (USC), §§1401 et seq., and the applicable federal regulations, 34 Code of Federal Regulations (CFR), §§300.1 et seq.

(b) The Texas Education (TEA) shall implement a one-tier system of due process hearings under the IDEA. The proceedings in due process hearings shall be governed by the provisions of 34 CFR, §§300.507-300.514, and 34 CFR, §300.532, if applicable, and §§89.1151, 89.1165, 89.1170, 89.1180, 89.1185 and 89.1191 of this subchapter.

(c) A parent or public education agency must request a due process hearing within one year of the date the complainant knew or should have known about the alleged action that serves as the basis for the hearing request.

Comments

Source Note: The provisions of this §89.1151 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective December 30, 2001, 26 TexReg 10536; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1165: Request for Hearing

(a) A request for a due process hearing (due process complaint) must be in writing and must be filed with the Texas Education Agency, 1701 N. Congress Avenue, Austin, Texas 78701. The request for a due process hearing may be filed by mail, hand-delivery, or facsimile. The Individuals with Disabilities Education Act (IDEA) timelines applicable to due process hearings shall commence when the non-filing party first receives the request for a due process hearing. Unless rebutted, it will be presumed that the non-filing party first received the hearing request on the date it is sent to the parties by the Texas Education Agency (TEA). The TEA has developed a model form which may be used by a parent to initiate a due process hearing. The form is available on request from TEA, all regional education service centers, and all school districts. The form is also available on TEA's website.

(b) The party filing a request for a due process hearing must provide a copy of the request to the other party.

(c) The request for due process hearing must include:

(1) the name of the child;

(2) the address of the residence of the child;

(3) the name of the school the child is attending;

(4) in the case of a homeless child or youth (within the meaning of §725(2) of the McKinney-Vento Homeless Assistance Act (42 United States Code §11434a(2)), available contact information for the child, and the name of the school the child is attending;

(5) a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and

(6) a proposed resolution of the problem to the extent known and available to the party at the time.

(d) A party may not have a due process hearing until the party, or the attorney representing the party, files a request for a due process hearing that meets the requirements of paragraph (c) of this section.

Comments

Source Note: The provisions of this §89.1165 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1170: Impartial Hearing Officer

(a) Each due process hearing shall be conducted by an impartial hearing officer selected by the Texas Education Agency (TEA).

(b) The hearing officer has the authority to administer oaths; call and examine witnesses; rule on motions, including discovery and dispositive motions; determine admissibility of evidence and amendments to pleadings; maintain decorum; schedule and recess the proceedings from day to day; and make any other orders as justice requires, including the application of sanctions as necessary to maintain an orderly hearing process.

(c) If the hearing officer is removed, dies, becomes disabled, or withdraws from an appeal before the completion of duties, the TEA may designate a substitute hearing officer to complete the performance of duties without the necessity of repeating any previous proceedings.

Comments

Source Note: The provisions of this §89.1170 adopted to be effective March 6, 2001, 26 TexReg 1837

§89.1180: Prehearing Procedures

(a) Promptly upon being assigned to a hearing, the hearing officer will forward to the parties a scheduling order which sets the time, date, and location of the hearing and contains the timelines for the following actions, as applicable:

(1) Response to Complaint (34 Code of Federal Regulations (CFR), §300.508(f));

(2) Resolution Meeting (34 CFR, §300.510(a));

(3) Contesting Sufficiency of the Complaint (34 CFR, §300.508(d));

(4) Resolution Period (34 CFR, §300.510(b));

(5) Five-Business Day Disclosure (34 CFR, §300.512 (a)(3)); and

(6) the date by which the final decision of the hearing officer shall be issued (34 CFR, §300.515 and §300.532(c)(2)).

(b) The hearing officer shall schedule a prehearing conference to be held at a time reasonably convenient to the parties to the hearing. The prehearing conference shall be held by telephone unless the hearing officer determines that circumstances require an in-person conference.

(c) The prehearing shall be recorded and transcribed by a reporter, who shall immediately prepare a transcript of the prehearing for the hearing officer with copies to each of the parties.

(d) The purpose of the prehearing conference shall be to consider any of the following:

(1) specifying issues as set forth in the due process complaint notice;

(2) admitting certain assertions of fact or stipulations;

(3) establishing any limitation of the number of witnesses and the time allotted for presenting each party's case; and/or

(4) discussing other matters which may aid in simplifying the proceeding or disposing of matters in controversy, including settling matters in dispute.

(e) Promptly upon the conclusion of the prehearing conference, the hearing officer will issue and deliver to the parties, or their legal representatives, a written prehearing order which confirms and/or identifies:

(1) the time, place, and date of the hearing;

(2) the issues to be adjudicated at the hearing;

(3) the relief being sought at the hearing;

(4) the deadline for disclosure of evidence and identification of witnesses, which must be at least five business days prior to the scheduled date of the hearing (hereinafter referred to as the "Disclosure Deadline");

(5) the date by which the final decision of the hearing officer shall be issued; and

(6) other information determined to be relevant by the hearing officer.

(f) No pleadings, other than the request for hearing, and Response to Complaint, if applicable, are mandatory, unless ordered by the hearing officer. Any pleadings after the request for a due process hearing shall be filed with the hearing officer. Copies of all pleadings shall be sent to all parties of record in the hearing and to the hearing officer. If a party is represented by an attorney, all copies shall be sent to the attorney of record. Telephone facsimile copies may be substituted for copies sent by other means. An affirmative statement that a copy of the pleading has been sent to all parties and the hearing officer is sufficient to indicate compliance with this rule.

(g) Discovery methods shall be limited to those specified in the Administrative Procedure Act (APA), Texas Government Code, Chapter 2001, and may be further limited by order of the hearing officer. Upon a party's request to the hearing officer, the hearing officer may issue subpoenas and commissions to take depositions under the APA. Subpoenas and commissions to take depositions shall be issued in the name of the Texas Education Agency.

(h) On or before the Disclosure Deadline (which must be at least five business days prior to a scheduled due process hearing), each party must disclose and provide to all other parties and the hearing officer copies of all evidence (including, without limitation, all evaluations completed by that date and recommendations based on those evaluations) which the party intends to use at the hearing. An index of the documents disclosed must be included with and accompany the documents. Each party must also include with the documents disclosed a list of all witnesses (including their names, addresses, phone numbers, and professions) which the party anticipates calling to testify at the hearing.

(i) A party may request a dismissal or nonsuit of a due process hearing to the same extent that a plaintiff may dismiss or nonsuit a case under Texas Rules of Civil Procedure, Rule 162. However, if a party requests a dismissal or nonsuit of a due process hearing after the Disclosure Deadline has passed and, at any time within one year thereafter requests a subsequent due process hearing involving the same or substantially similar issues as those alleged in the hearing which was dismissed or nonsuited, then, absent good cause or unless the parties agree otherwise, the Disclosure Deadline for the subsequent due process hearing shall be the same date as was established for the hearing that was dismissed or nonsuited.

Comments

Source Note: The provisions of this §89.1180 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1185: Hearing

(a) The hearing officer shall afford the parties an opportunity for hearing within the timelines set forth in 34 Code of Federal Regulations (CFR), §300.515 and §300.532, as applicable, unless the parties agree otherwise, except that the parties must comply with the timelines for expedited hearings.

(b) Each hearing shall be conducted at a time and place that are reasonably convenient to the parents and child involved.

(c) All persons in attendance shall comport themselves with the same dignity, courtesy, and respect required by the district courts of the State of Texas. All argument shall be made to the hearing officer alone.

(d) Except as modified or limited by the provisions of 34 CFR, §§300.507-300.514, or 300.532, or the provisions of §§89.1151-89.1191 of this subchapter, the Texas Rules of Civil Procedure shall govern the proceedings at the hearing and the Texas Rules of Evidence shall govern evidentiary issues.

(e) Before a document may be offered or admitted into evidence, the document must be identified as an exhibit of the party offering the document. All pages within the exhibit must be numbered, and all personally identifiable information must be redacted from the exhibit.

(f) The hearing officer may set reasonable time limits for presenting evidence at the hearing.

(g) Upon request, the hearing officer, at his or her discretion, may permit testimony to be received by telephone.

(h) Granting of a motion to exclude witnesses from the hearing room shall be at the hearing officer's discretion.

(i) Hearings conducted under this subchapter shall be closed to the public, unless the parent requests that the hearing be open.

(j) The hearing shall be recorded and transcribed by a reporter, who shall immediately prepare and transmit a transcript of the evidence to the hearing officer with copies to each of the parties. The hearing officer shall instruct the reporter to delete all personally identifiable information from the transcription of the hearing.

(k) Filing of post-hearing briefs shall be permitted only upon order of the hearing officer.

(l) The hearing officer shall issue a final decision, signed and dated, no later than 45 days after the expiration of the 30-day period under 34 CFR, §300.510(b), or the adjusted time periods described in 34 CFR, §300.510(c), after a request for hearing is received by the Texas Education Agency, unless the deadline for a final decision has been extended by the hearing officer as provided in subsection (n) of this section. A final decision must be in writing and must include findings of fact and conclusions of law separately stated. Findings of fact must be based exclusively on the evidence presented at the hearing. The final decision shall be mailed to each party by the hearing officer. The hearing officer, at his or her discretion, may render his or her decision following the conclusion of the hearing, to be followed by written findings of fact and written decision.

(m) At the request of either party, the hearing officer shall include, in the final decision, specific findings of fact regarding the following issues:

(1) whether the parent or the school district unreasonably protracted the final resolution of the issues in controversy in the hearing; and

(2) if the parent was represented by an attorney, whether the parent's attorney provided the school district the appropriate information in the due process complaint in accordance with 34 CFR, §300.508(b).

(n) A hearing officer may grant extensions of time for good cause beyond the time period specified in subsection (l) of this section at the request of either party. Any such extension shall be granted to a specific date and shall be stated in writing by the hearing officer to each of the parties.

(o) The decision issued by the hearing officer is final, except that any party aggrieved by the findings and decision made by the hearing officer, or the performance thereof by any other party, may bring a civil action with respect to the issues presented at the due process hearing in any state court of competent jurisdiction or in a district court of the United States, as provided in 20 United States Code (USC), §1415(i)(2), and 34 CFR, §300.516.

(p) In accordance with 34 CFR, §300.518(d), a school district shall implement any decision of the hearing officer that is, at least in part, adverse to the school district in a timely manner within ten school days after the date the decision was rendered. School districts must provide services ordered by the hearing officer, but may withhold reimbursement during the pendency of appeals.

Comments

Source Note: The provisions of this §89.1185 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective December 30, 2001, 26 TexReg 10536; amended to be effective November 16, 2003, 28 TexReg 9830; amended to be effective November 11, 2007, 32 TexReg 8129

§89.1191: Special Rule for Expedited Due Process Hearings

An expedited due process hearing requested by a party under 34 Code of Federal Regulations, §300.532, shall be governed by the same rules as are applicable to due process hearings generally, except that the final decision of the hearing officer must be issued and mailed to each of the parties no later than 45 days after the date the request for the expedited hearing is received by the Texas Education Agency, without exceptions or extensions.

Comments

Source Note: The provisions of this §89.1191 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 11, 2007, 32 TexReg 8129

Subchapter BB

§89.1201: Policy

(a) It is the policy of the state that every student in the state who has a home language other than English and who is identified as limited English proficient shall be provided a full opportunity to participate in a bilingual education or English as a second language program, as required in the Texas Education Code, Chapter 29, Subchapter B. To ensure equal educational opportunity, as required in the Texas Education Code, §1.002(a), each school district shall:

(1) identify limited English proficient students based on criteria established by the state;

(2) provide bilingual education and English as a second language programs, as integral parts of the regular program as described in the Texas Education Code, §4.002;

(3) seek certified teaching personnel to ensure that limited English proficient students are afforded full opportunity to master the essential skills and knowledge required by the state; and

(4) assess achievement for essential skills and knowledge in accordance with the Texas Education Code, Chapter 39, to ensure accountability for limited English proficient students and the schools that serve them.

(b) The goal of bilingual education programs shall be to enable limited English proficient students to become competent in the comprehension, speaking, reading, and composition of the English language through the development of literacy and academic skills in the primary language and English. Such programs shall emphasize the mastery of English language skills, as well as mathematics, science and social studies, as integral parts of the academic goals for all students to enable limited English proficient students to participate equitably in school.

(c) The goal of English as a second language programs shall be to enable limited English proficient students to become competent in the comprehension, speaking, reading, and composition of the English language through the integrated use of second language methods. The English as a second language program shall emphasize the mastery of English language skills, as well as mathematics, science and social studies, as integral parts of the academic goals for all students to enable limited English proficient students to participate equitably in school.

(d) Bilingual education and English as a second language programs shall be integral parts of the total school program. Such programs shall use instructional approaches designed to meet the special needs of limited English proficient students. The basic curriculum content of the programs shall be based on the essential skills and knowledge required by the state.

Comments

Source Note: The provisions of this §89.1201 adopted to be effective September 1, 1996, 21 TexReg 5700.

§89.1205: Required Bilingual Education and English as a Second Language Programs

(a) Each school district which has an enrollment of 20 or more limited English proficient students in any language classification in the same grade level district-wide shall offer a bilingual education program as described in subsection (b) of this section for the limited English proficient students in prekindergarten through the elementary grades who speak that language. "Elementary grades" shall include at least prekindergarten through Grade 5; sixth grade shall be included when clustered with elementary grades.

(b) A district shall provide a bilingual education program by offering a dual language program in prekindergarten through the elementary grades, as described in §89.1210 of this title (relating to Program Content and Design).

(c) Districts are authorized to establish a bilingual education program at grade levels in which the bilingual education program is not required under subsection (a) of this section.

(d) All limited English proficient students for whom a district is not required to offer a bilingual education program shall be provided an English as a second language program as described in subsection (e) of this section, regardless of the students' grade levels and home language, and regardless of the number of such students.

(e) A district shall provide an English as a second language program by offering an English as a second language program as described in §89.1210 of this title (relating to Program Content and Design).

(f) Districts may join with other districts to provide bilingual education or English as a second language programs.

Comments

Source Note: The provisions of this §89.1205 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective April 18, 2002, 27 TexReg 3105; amended to be effective September 17, 2007, 32 TexReg 6311

§89.1207: Exceptions and Waivers

(a) Bilingual education program.

(1) Exceptions. A district that is unable to provide a bilingual education program as required by §89.1205(a) of this title (relating to Required Bilingual Education and English as a Second Language Programs) shall request from the commissioner of education an exception to the bilingual education program and the approval of an alternative program. The approval of an exception to the bilingual education program shall be valid only during the school year for which it was granted. A request for a bilingual education program exception must be submitted by October 1 and shall include:

(A) a statement of the reasons the district is unable to offer the bilingual education program with supporting documentation;

(B) a description of the proposed alternative modified bilingual education or intensive English as a second language programs designed to meet the affective, linguistic, and cognitive needs of the limited English proficient students, including the manner through which the students will be given opportunity to master the essential knowledge and skills required by Chapter 74 of this title (relating to Curriculum Requirements);

(C) an assurance that certified teachers available in the district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels to ensure that the linguistic and academic needs of the limited English proficient students with beginning levels of English proficiency are served on a priority basis;

(D) a description of the training program which the district will provide to improve the skills of the certified teachers that are assigned to implement the proposed alternative program, and an assurance that at least 10% of the bilingual education allotment shall be used to fund this training program; and

(E) a description of the actions the district will take to ensure that the program required under §89.1205(a) of this title will be provided the subsequent year, including its plans for recruiting and training an adequate number of certified teachers to eliminate the need for subsequent exceptions and measurable targets for the subsequent year.

(2) Approval of exceptions. Bilingual education program exceptions will be granted by the commissioner of education if the requesting district:

(A) meets or exceeds the state average for limited English proficient student performance on the required state assessments;

(B) meets the requirements and measurable targets of the action plan described in paragraph (1)(E) of this subsection submitted the previous year and approved by the Texas Education Agency (TEA); or

(C) reduces by 25% the number of teachers under exception for bilingual Spanish programs when compared to the number of exceptions granted the previous year.

(3) Denial of exceptions. A district denied a bilingual education program exception must submit to the commissioner of education a detailed action plan for complying with required regulations for the following school year.

(4) Appeals. A district denied a bilingual education program exception may appeal to the commissioner or the commissioner's designee. The decision of the commissioner or commissioner's designee is final and may not be appealed further.

(5) Special accreditation investigation. The commissioner may authorize a special accreditation investigation under the TEC, §39.075, if a district:

(A) is denied a bilingual education program exception for more than three consecutive years; or

(B) is granted an exception based on meeting or exceeding the state average for limited English proficient student performance on the required state assessments but has excessive numbers of allowable exemptions from the required state assessments.

(6) Sanctions. Based on the results of a special accreditation investigation, the commissioner may take appropriate action under the TEC, §39.131.

(b) English as a second language program.

(1) Waivers. A district that is unable to provide an English as a second language program as required by §89.1205(d) of this title because of an insufficient number of certified teachers shall request from the commissioner of education a waiver of the certification requirements for each teacher who will provide instruction in English as a second language for limited English proficient students. The approval of a waiver of certification requirements shall be valid only during the school year for which it was granted. A request for an English as a second language program waiver must be submitted by October 1 and shall include:

(A) a statement of the reasons the district is unable to provide a sufficient number of certified teachers to offer the English as a second language program;

(B) a description of the manner in which the teachers in the English as a second language program will meet the affective, linguistic, and cognitive needs of the limited English proficient students, including the manner through which the students will be given opportunity to master the essential knowledge and skills required by Chapter 74 of this title;

(C) an assurance that certified teachers available in the district will be assigned to grade levels beginning at prekindergarten followed successively by subsequent grade levels in the elementary school campus, and on the basis of need for secondary campuses, to ensure that the linguistic and academic needs of the limited English proficient students with the lower levels of English proficiency are served on a priority basis;

(D) the name of each teacher not on permit who is assigned to implement the English as a second language program and estimated date for the completion of the English as a second language supplemental certification for each teacher under a waiver, which must be completed by the end of the school year for which the waiver was requested;

(E) a description of the training program which the district will provide to improve the skills of the certified teachers that are assigned to implement the proposed English as a second language program, and an assurance that at least 10% of the bilingual education allotment shall be used to fund this training; and

(F) a description of the actions the district will take to ensure that the program required under §89.1205(d) of this title will be provided the subsequent year, including its plans for recruiting and training an adequate number of certified teachers to eliminate the need for subsequent waivers.

(2) Approval of waivers. English as a second language waivers will be granted by the commissioner of education if the requesting district:

(A) meets or exceeds the state average for limited English proficient student performance on the required state assessments; or

(B) meets the requirements and measurable targets of the action plan described in paragraph (1)(D) of this subsection submitted the previous year and approved by the TEA.

(3) Denial of waivers. A district denied an English as a second language program waiver must submit to the commissioner of education a detailed action plan for complying with required regulations for the following school year.

(4) Appeals. A district denied an English as a second language waiver may appeal to the commissioner or the commissioner's designee. The decision of the commissioner or commissioner's designee is final and may not be appealed further.

(5) Special accreditation investigation. The commissioner may authorize a special accreditation investigation under the TEC, §39.075, if a district:

(A) is denied an English as a second language waiver for more than three consecutive years; or

(B) is granted a waiver based on meeting or exceeding the state average for limited English proficient student performance on the required state assessments but has excessive numbers of allowable exemptions from the required state assessments.

(6) Sanctions. Based on the results of a special accreditation investigation, the commissioner may take appropriate action under the TEC, §39.131.

Comments

Source Note: The provisions of this §89.1207 adopted to be effective September 17, 2007, 32 TexReg 6311

§89.1210: Program Content and Design

(a) Each school district required to offer a bilingual education or English as a second language program shall provide each limited English proficient student the opportunity to be enrolled in the required program at his or her grade level. Each student's level of proficiency shall be designated by the language proficiency assessment committee in accordance with §89.1220(g) of this title (relating to Language Proficiency Assessment Committee). The district shall modify the instruction, pacing, and materials to ensure that limited English proficient students have a full opportunity to master the essential knowledge and skills of the required curriculum. Students participating in the bilingual education program may demonstrate their mastery of the essential knowledge and skills in either their home language or in English for each content area.

(b) The bilingual education program shall be a full-time program of instruction in which both the students' home language and English shall be used for instruction. The amount of instruction in each language within the bilingual education program shall be commensurate with the students' level of proficiency in each language and their level of academic achievement. The students' level of language proficiency and academic achievement shall be designated by the language proficiency assessment committee. The Texas Education Agency (TEA) shall develop program guidelines to ensure that the programs are developmentally appropriate, that the instruction in each language is appropriate, and that the students are challenged to perform at a level commensurate with their linguistic proficiency and academic potential.

(c) The bilingual education program shall be an integral part of the regular educational program required under Chapter 74 of this title (relating to Curriculum Requirements). In bilingual education programs using Spanish and English as languages of instruction, districts shall use state-adopted English and Spanish instructional materials and supplementary materials as curriculum tools to enhance the learning process; in addition, districts may use other curriculum adaptations which have been developed. The bilingual education program shall address the affective, linguistic, and cognitive needs of limited English proficient students as follows.

(1) Affective. Limited English proficient students shall be provided instruction in their home language to introduce basic concepts of the school environment, and instruction both in their home language and in English which instills confidence, self-assurance, and a positive identity with their cultural heritages. The program shall address the history and cultural heritage associated with both the students' home language and the United States.

(2) Linguistic. Limited English proficient students shall be provided instruction in the skills of comprehension, speaking, reading, and composition both in their home language and in English. The instruction in both languages shall be structured to ensure that the students master the required essential knowledge and skills and higher order thinking skills in all subjects.

(3) Cognitive. Limited English proficient students shall be provided instruction in mathematics, science, health, and social studies both in their home language and in English. The content area instruction in both languages shall be structured to ensure that the students master the required essential knowledge and skills and higher order thinking skills in all subjects.

(d) English as a second language programs shall be intensive programs of instruction designed to develop proficiency in the comprehension, speaking, reading, and composition in the English language. Instruction in English as a second language shall be commensurate with the student's level of English proficiency and his or her level of academic achievement. In prekindergarten through Grade 8, instruction in English as a second language may vary from the amount of time accorded to instruction in English language arts in the regular program for nonlimited English proficient students to a full-time instructional setting utilizing second language methods. In high school, the English as a second language program shall be consistent with graduation requirements under Chapter 74 of this title (relating to Curriculum Requirements). The language proficiency assessment committee may recommend appropriate services that may include content courses provided through sheltered instructional approaches by trained teachers, enrollment in English as a second language courses, additional state elective English courses, and special assistance provided through locally determined programs.

(e) The English as a second language program shall be an integral part of the regular educational program required under Chapter 74 of this title (relating to Curriculum Requirements). Districts shall use state-adopted English as a second language instructional materials and supplementary materials as curriculum tools. In addition, districts may use other curriculum adaptations which have been developed. The district shall provide for ongoing coordination between the English as a second language program and the regular educational program. The English as a second language program shall address the affective, linguistic, and cognitive needs of limited English proficient students as follows.

(1) Affective. Limited English proficient students shall be provided instruction using second language methods in English to introduce basic concepts of the school environment which instills confidence, self-assurance, and a positive identity with their cultural heritages. The program shall address the history and cultural heritage associated with both the students' home language and the United States.

(2) Linguistic. Limited English proficient students shall be provided intensive instruction to develop proficiency in the comprehension, speaking, reading, and composition of the English language. The instruction in academic content areas shall be structured to ensure that the students master the required essential knowledge and skills and higher order thinking skills.

(3) Cognitive. Limited English proficient students shall be provided instruction in English in mathematics, science, health, and social studies using second language methods. The instruction in academic content areas shall be structured to ensure that the students master the required essential knowledge and skills and higher order thinking skills.

(f) Except in the courses specified in subsection (g) of this section, English as a second language strategies, which may involve the use of the students' home language, may be provided in any of the courses or electives required for promotion or graduation to assist the limited English proficient students to master the essential knowledge and skills for the required subject(s). The use of English as a second language strategies shall not impede the awarding of credit toward meeting promotion or graduation requirements.

(g) In subjects such as art, music, and physical education, the limited English proficient students shall participate with their English-speaking peers in regular classes provided in the subjects. The district shall ensure that students enrolled in bilingual education and English as a second language programs have a meaningful opportunity to participate with other students in all extracurricular activities.

(h) The required bilingual education or English as a second language programs shall be provided to every limited English proficient student with parental approval until such time that the student meets exit criteria as described in §89.1225(h) of this title (relating to Testing and Classification of Students) or graduates from high school.

Comments

Source Note: The provisions of this §89.1210 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective April 18, 2002, 27 TexReg 3105

§89.1215: Home Language Survey

(a) Districts shall conduct only one home language survey of each student. The home language survey shall be administered to each student new to the district, and to students previously enrolled who were not surveyed in the past. Districts shall require that the survey be signed by the student's parent or guardian for students in grades prekindergarten through Grade 8, or by the student in Grades 9-12. The original copy of the survey shall be kept in the student's permanent record.

(b) The home language survey shall be administered in English and Spanish; for students of other language groups, the home language survey shall be translated into the home language whenever possible. The home language survey shall contain the following questions.

(1) "What language is spoken in your home most of the time?"

(2) "What language does your child (do you) speak most of the time?"

(c) Additional information may be collected by the district and recorded on the home language survey.

(d) The home language survey shall be used to establish the student's language classification for determining whether the district is required to provide a bilingual education or English as a second language program. If the response on the home language survey indicates that a language other than English is used, the student shall be tested in accordance with §89.1225 of this title (relating to Testing and Classification of Students).

Comments

Source Note: The provisions of this §89.1215 adopted to be effective September 1, 1996, 21 TexReg 5700.

§89.1220: Language Proficiency Assessment Committee

(a) Districts shall by local board policy establish and operate a language proficiency assessment committee. The district shall have on file policy and procedures for the selection, appointment, and training of members of the language proficiency assessment committee(s).

(b) In districts required to provide a bilingual education program, the language proficiency assessment committee shall be composed of the membership described in the Texas Education Code, 29.063. If the district does not have an individual in one or more of the school job classifications required, the district shall designate another professional staff member to serve on the language proficiency assessment committee. The district may add other members to the committee in any of the required categories.

(c) In districts and grade levels not required to provide a bilingual education program, the language proficiency assessment committee shall be composed of one or more professional personnel and a parent of a limited English proficient student participating in the program designated by the district.

(d) No parent serving on the language proficiency assessment committee shall be an employee of the school district.

(e) A district shall establish and operate a sufficient number of language proficiency assessment committees to enable them to discharge their duties within four weeks of the enrollment of limited English proficient students.

(f) All members of the language proficiency assessment committee, including parents, shall be acting for the school district and shall observe all laws and rules governing confidentiality of information concerning individual students. The district shall be responsible for the orientation and training of all members, including the parents, of the language proficiency assessment committee.

(g) Upon their initial enrollment and at the end of each school year, the language proficiency assessment committee shall review all pertinent information on all limited English proficient students identified in accordance with §89.1225(f) of this title (relating to Testing and Classification of Students), and shall:

(1) designate the language proficiency level of each limited English proficient student in accordance with the guidelines issued pursuant to §89.1210(b) and (d) of this title (relating to Program Content and Design);

(2) designate the level of academic achievement of each limited English proficient student;

(3) designate, subject to parental approval, the initial instructional placement of each limited English proficient student in the required program;

(4) facilitate the participation of limited English proficient students in other special programs for which they are eligible provided by the district with either state or federal funds; and

(5) classify students as English proficient in accordance with the criteria described in §89.1225(h) of this title (relating to Testing and Classification of Students), and recommend their exit from the bilingual education or English as a second language program.

(h) Before the administration of the state criterion-referenced test each year, the language proficiency assessment committee shall determine the appropriate assessment option for each limited English proficient student as outlined in Chapter 101, Subchapter AA, of this title (relating to Commissioner's Rules Concerning the Participation of Limited English Proficient Students in State Assessments). The assessment options shall be:

(1) administration of the English version criterion-referenced test;

(2) administration of the Spanish version criterion-referenced test; or

(3) for certain immigrant students, exemption from the criterion-referenced test.

(i) In determining the appropriate assessment option, the language proficiency assessment committee shall consider the following criteria for each student:

(1) academic program participation (bilingual education or English as a second language) and language of instruction;

(2) language proficiency, including literacy, in English and/or Spanish;

(3) number of years enrolled in U.S. schools;

(4) previous testing history;

(5) level achieved on the state English language proficiency assessment in reading;

(6) consecutive years of residence outside of the 50 U.S. states; and

(7) schooling outside the U.S.

(j) The language proficiency assessment committee shall give written notice to the student's parent advising that the student has been classified as limited English proficient and requesting approval to place the student in the required bilingual education or English as a second language program. The notice shall include information about the benefits of the bilingual education or English as a second language program for which the student has been recommended and that it is an integral part of the school program.

(k) Pending parent approval of a limited English proficient student's entry into the bilingual education or English as a second language program recommended by the language proficiency assessment committee, the district shall place the student in the recommended program, but may count only limited English proficient students with parental approval for bilingual education allotment.

(l) The language proficiency assessment committee shall monitor the academic progress of each student who has exited from a bilingual or English as a second language program in accordance with the Texas Education Code, §29.0561.

(m) The student's permanent record shall contain documentation of all actions impacting the limited English proficient student. This documentation shall include:

(1) the identification of the student as limited English proficient;

(2) the designation of the student's level of language proficiency;

(3) the recommendation of program placement;

(4) parental approval of entry or placement into the program;

(5) the dates of entry into, and placement within, the program;

(6) the dates of exemptions from the criterion-referenced test, criteria used for this determination, and additional instructional interventions provided to students to ensure adequate yearly progress;

(7) the date of exit from the program and parent notification; and

(8) the results of monitoring for academic success, including students formerly classified as limited English proficient, as required under the Texas Education Code, §29.063(c)(4).

Comments

Source Note: The provisions of this §89.1220 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective April 18, 2002, 27 TexReg 3105; amended to be effective September 17, 2007, 32 TexReg 6311

§89.1225: Testing and Classification of Students

(a) For identifying limited English proficient students, districts shall administer to each student who has a language other than English as identified on the home language survey:

(1) in prekindergarten through Grade 1, an oral language proficiency test approved by the Texas Education Agency (TEA); and

(2) in Grades 2-12, a TEA-approved oral language proficiency test and the English reading and English language arts sections from a TEA-approved norm-referenced measure, or another test approved by TEA, unless the norm-referenced measure is not valid in accordance with subsection (f)(2)(C) of this section.

(b) Districts which provide a bilingual education program shall administer an oral language proficiency test in the home language of the students who are eligible for being served in the bilingual education program. If the home language of the students is Spanish, the district shall administer the Spanish version of the TEA-approved oral language proficiency test which was administered in English. If the home language of the students is other than Spanish, the district shall determine the students' level of proficiency using informal oral language assessment measures.

(c) All the oral language proficiency testing shall be administered by professionals or paraprofessionals who are proficient in the language of the test and trained in language proficiency testing.

(d) The grade levels and the scores on each test which shall identify a student as limited English proficient shall be established by TEA. The commissioner of education shall review the approved list of tests, grade levels, and scores annually and update the list.

(e) Students with a language other than English shall be administered the required oral language proficiency test within four weeks of their enrollment. Norm-referenced assessment instruments, however, may be administered within the established norming period.

(f) For entry into a bilingual education or English as a second language program, a student shall be identified as limited English proficient using the following criteria.

(1) At prekindergarten through Grade 1, the score on the English oral language proficiency test is below the level designated for indicating limited English proficiency under subsection (d) of this section.

(2) At Grades 2-12:

(A) the student's score on the English oral language proficiency test is below the level designated for indicating limited English proficiency under subsection (d) of this section;

(B) the student's score on the reading and language arts sections of the TEA-approved norm-referenced measure at his or her grade level is below the 40th percentile; or

(C) the student's ability in English is so limited that the administration, at his or her grade level, of the reading and language arts sections of a TEA-approved norm-referenced assessment instrument or other test approved by TEA is not valid.

(3) In the absence of data required in paragraph (2)(B) of this subsection, evidence that the student is not academically successful as defined in subsection (j) of this section is required.

(4) The admission review and dismissal (ARD) committee in conjunction with the language proficiency assessment committee shall determine an appropriate assessment instrument and designated level of performance for indicating limited English proficiency as required under subsection (d) of this section for students for whom those tests would be inappropriate as part of the individualized education program (IEP). The decision for entry into a bilingual education or English as a second language program shall be determined by the ARD committee in conjunction with the language proficiency assessment committee in accordance with §89.1220(g) of this title (relating to Language Proficiency Assessment Committee).

(g) Within the four weeks of their initial enrollment in the district, students shall be identified as limited English proficient and enrolled into the required bilingual education or English as a second language program. Prekindergarten and kindergarten students preregistered in the spring shall be identified as limited English proficient and enrolled in the required bilingual education or English as a second language program within four weeks of the start of the school year in the fall.

(h) For exit from a bilingual education or English as a second language program, a student may be classified as English proficient at the end of the school year in which a student would be able to participate equally in a regular, all-English, instructional program. This determination shall be based upon all of the following:

(1) TEA-approved tests that measure the extent to which the student has developed oral and written language proficiency and specific language skills in English;

(2) satisfactory performance on the reading assessment instrument under the Texas Education Code, §39.023(a), or a TEA-approved English language arts assessment instrument administered in English, or a score at or above the 40th percentile on both the English reading and the English language arts sections of a TEA-approved norm-referenced assessment instrument for a student who is enrolled in Grade 1 or 2; and

(3) TEA-approved criterion-referenced written tests when available and the results of a subjective teacher evaluation.

(i) A student may not be exited from the bilingual education or English as a second language program in prekindergarten or kindergarten. A district must ensure that limited English proficient students are prepared to meet academic standards required by TEC, §28.0211.

(j) For determining whether a student who has been exited from a bilingual education or English as a second language program is academically successful, the following criteria shall be used at the end of the school year:

(1) the student meets state performance standards in English of the criterion-referenced assessment instrument required in the Texas Education Code, §39.023, for the grade level as applicable; and

(2) the student has passing grades in all subjects and courses taken.

(k) The ARD committee in conjunction with the language proficiency assessment committee shall determine an appropriate assessment instrument and performance standard requirement for exit under subsection (h) of this section for students for whom those tests would be inappropriate as part of the IEP. The decision to exit a student who receives both special education and special language services from the bilingual education or English as a second language program is determined by the ARD committee in conjunction with the language proficiency assessment committee in accordance with applicable provisions of subsection (h) of this section.

Comments

Source Note: The provisions of this §89.1225 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective April 18, 2002, 27 TexReg 3105; amended to be effective September 17, 2007, 32 TexReg 6311

§89.1230: Eligible Students with Disabilities

(a) Districts shall implement assessment procedures which differentiate between language proficiency and handicapping conditions in accordance with Subchapter AA of this chapter (relating to Special Education Services), and shall establish placement procedures which ensure that placement in a bilingual education or English as a second language program is not refused solely because the student has a disability.

(b) A professional member of the language proficiency assessment committee shall serve on the admission, review, and dismissal (ARD) committee of each limited English proficient student who qualifies for services in the special education program.

Comments

Source Note: The provisions of this §89.1230 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383

§89.1233: Participation of Nonlimited English Proficiency Students

Districts may enroll students who are not limited English proficient in the bilingual education program in accordance with the Texas Education Code, §29.058.

Comments

Source Note: The provisions of this §89.1233 adopted to be effective March 5, 1999, 24 TexReg 1383

§89.1235: Facilities

Bilingual education and English as a second language programs shall be located in the regular public schools of the district rather than in separate facilities. In order to provide the required bilingual education or English as a second language programs, districts may concentrate the programs at a limited number of schools within the district provided that the enrollment in those schools shall not exceed 60% limited English proficient students.

Comments

Source Note: The provisions of this §89.1235 adopted to be effective September 1, 1996, 21 TexReg 5700.

§89.1240: Parental Authority and Responsibility

(a) The parents shall be notified that their child has been classified as limited English proficient and recommended for placement in the required bilingual education or English as a second language program. They shall be provided information describing the bilingual education or English as a second language program recommended, its benefits to the student, and its being an integral part of the school program to ensure that the parents understand the purposes and content of the program. The entry or placement of a student in the bilingual education or English as a second language program must be approved in writing by the student's parent. The parent's approval shall be considered valid for the student's continued participation in the required bilingual education or English as a second language program until the student meets the exit criteria described in §89.1225(h) of this title (relating to Testing and Classification of Students), graduates from high school, or the parent requests a change in program placement.

(b) The district shall notify the student's parent of the student's reclassification as English proficient and his or her exit from the bilingual education or English as a second language program and acquire approval as required under Texas Education Code, §29.056(a). Students meeting exit requirements may continue in the bilingual education or English as a second language program with parental approval but are not eligible for inclusion in the district bilingual education allotment.

(c) The parent of a student enrolled in a district which is required to offer bilingual education or English as a second language programs may appeal to the commissioner of education if the district fails to comply with the law or the rules. Appeals shall be filed in accordance with Chapter 157 of this title (relating to Hearings and Appeals).

Comments

Source Note: The provisions of this §89.1240 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective April 18, 2002, 27 TexReg 3105

§89.1245: Staffing and Staff Development

(a) School districts shall take all reasonable affirmative steps to assign appropriately certified teachers to the required bilingual education and English as a second language programs in accordance with the Texas Education Code, §29.061, concerning bilingual education and special language program teachers. Districts which are unable to secure a sufficient number of certified bilingual education and English as a second language teachers to provide the required programs, shall request emergency teaching permits or special assignment permits, as appropriate, in accordance with Chapter 230, Subchapter Q, of this title (relating to Permits).

(b) School districts which are unable to employ a sufficient number of teachers, including part-time teachers, who meet the requirements of subsection (a) of this section for the bilingual education and English as a second language programs shall apply on or before October 1 for an exception to the bilingual education program as provided in §89.1205(g) of this title (relating to Required Bilingual Education and English as a Second Language Programs) or a waiver of the certification requirements in the English as a second language program as provided in §89.1205(h) of this title (relating to Required Bilingual Education and English as a Second Language Programs) as needed.

(c) Teachers assigned to the bilingual education program and/or English as a second language program may receive salary supplements as authorized by the Texas Education Code, §42.153.

(d) Districts may compensate teachers and aides assigned to bilingual education and English as a second language programs for participation in continuing education programs designed to increase their skills or lead to bilingual education or English as a second language certification.

(e) Districts which are unable to staff their bilingual education and English as a second language programs with fully certified teachers shall use at least 10% of their bilingual education allotment for preservice and inservice training to improve the skills of the teachers who provide the instruction in the alternative bilingual education program, who provide instruction in English as a second language, and/or who provide content area instruction in special classes for limited English proficient students.

(f) The commissioner of education shall encourage districts to cooperate with colleges and universities to provide training for teachers assigned to the bilingual education and/or English as a second language programs.

(g) The Texas Education Agency (TEA) shall develop, in collaboration with Education Service Centers (ESCs), bilingual education training guides for implementing bilingual education and English as a second language training programs. The materials shall provide a framework for:

(1) developmentally appropriate bilingual education programs for early childhood through the elementary grades;

(2) affectively appropriate instruction in bilingual education and English as a second language programs in accordance with §89.1210(c)(1) and §89.1210(e)(1) of this title (relating to Program Content and Design);

(3) linguistically appropriate bilingual education and English as a second language programs in accordance with §89.1210(c)(2) and §89.1210(e)(2) of this title (relating to Program Content and Design);

(4) cognitively appropriate programs for limited English proficient students in accordance with §89.1210(c)(3) and §89.1210(e)(3) of this title (relating to Program Content and Design); and

(5) developmentally appropriate programs for gifted and talented limited English proficient students and limited English proficient students with handicaps.

Comments

Source Note: The provisions of this §89.1245 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective March 5, 1999, 24 TexReg 1383; amended to be effective April 18, 2002, 27 TexReg 3105

§89.1250: Required Summer School Programs

Summer school programs that are provided under the Texas Education Code, §29.060, for children of limited English proficiency who will be eligible for admission to kindergarten or first grade at the beginning of the next school year shall be implemented in accordance with this section.

(1) Purpose of summer school programs.

(A) Limited English proficient students shall have an opportunity to receive special instruction designed to prepare them to be successful in kindergarten and first grade.

(B) Instruction shall focus on language development and essential knowledge and skills appropriate to the level of the student.

(C) The program shall address the affective, linguistic, and cognitive needs of the limited English proficient students in accordance with §89.1210(c) and §89.1210(e) of this title (relating to Program Content and Design).

(2) Establishment of, and eligibility for, the program.

(A) Each district required to offer a bilingual or special language program in accordance with the Texas Education Code, §29.053, shall offer the summer program. Programs under this subsection for students who will be in bilingual education kindergarten and first grade programs shall be bilingual education.

(B) To be eligible for enrollment, a student must be eligible for admission to kindergarten or to the first grade at the beginning of the next school year and must be limited English proficient.

(C) Limited English proficiency shall be determined by screening students using informal oral language inventories or oral proficiency instruments approved by the commissioner of education, or other appropriate instruments.

(3) Operation of the program.

(A) Enrollment in the program is optional with the parents of the student.

(B) The program shall be operated on a one-half day basis, a minimum of three hours each day, for eight weeks or the equivalent of 120 hours of instruction.

(C) The student/teacher ratio for the program district-wide shall not exceed 18 to one.

(D) A district is not required to provide transportation for the summer program.

(E) Teachers shall possess certification or endorsement as required in the Texas Education Code, §29.061, and §89.1245 of this title (relating to Staffing and Staff Development).

(F) Reporting of student progress shall be determined by the board of trustees. A summary of student progress shall be provided to parents at the conclusion of the program. This summary shall be provided to the student's teacher at the beginning of the next regular school term.

(G) A district may join with other districts in cooperative efforts to plan and implement programs.

(H) The summer school program shall not substitute for any other program required to be provided during the regular school term, including those required in the Texas Education Code, §29.153.

(4) Funding and records for programs.

(A) A district shall use state and local funds for program purposes. Districts may use federal funds, consistent with requirements for the expenditure of federal funds, for the program.

(i) Available funds appropriated by the legislature for the support of summer school programs provided under the Texas Education Code, §29.060, shall be allocated to school districts in accordance with this subsection.

(ii) Funding for the summer school program shall be on a unit basis in such an allocation system to ensure a pupil/teacher ratio of not more than 18 to one. The numbers of students required to earn units shall be established by the commissioner of education. The allotment per unit shall be determined by the commissioner based on funds available.

(iii) Any district required to offer the program under paragraph (2)(A) of this subsection that has less than ten students district-wide desiring to participate is not required to operate the program. However, those districts must demonstrate that they have aggressively attempted to encourage student participation.

(iv) Payment to districts for summer school programs shall be based on units employed. This information must be submitted in a manner and according to a schedule established by the commissioner of education in order for a district to be eligible for funding.

(B) A district shall maintain records of eligibility, attendance, and progress of students.

Comments

Source Note: The provisions of this §89.1250 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective April 18, 2002, 27 TexReg 3105; amended to be effective February 17, 2005, 30 TexReg 709; amended to be effective September 17, 2007, 32 TexReg 6311

§89.1265: Evaluation

(a) All districts required to conduct a bilingual education or English as a second language program shall conduct periodic assessment and continuous diagnosis in the languages of instruction to determine program impact and student outcomes in all subject areas.

(b) Annual reports of educational performance shall reflect the academic progress in either language of the limited English proficient students, the extent to which they are becoming proficient in English, the number of students who have been exited from the bilingual education and English as a second language programs, and the number of teachers and aides trained and the frequency, scope, and results of the training. These reports shall be retained at the district level to be made available to monitoring teams according to §89.1260 of this title (relating to Monitoring of Programs and Enforcing Law and Commissioner's Rules).

(c) Districts shall report to parents the progress of their child as a result of participation in the program offered to limited English proficient students in English and the home language at least annually.

(d) Each school year, the principal of each school campus, with the assistance of the campus level committee, shall develop, review, and revise the campus improvement plan described in the Texas Education Code, §11.253, for the purpose of improving student performance for limited English proficient students.

Comments

Source Note: The provisions of this §89.1265 adopted to be effective September 1, 1996, 21 TexReg 5700; amended to be effective April 18, 2002, 27 TexReg 3105

Subchapter CC

§89.1311: Memorandum of Understanding to Provide Educational Services to Released Offenders

(a) Purpose. This memorandum of understanding is a non-financial, mutual agreement between the Texas Department of Criminal Justice (TDCJ) and the Texas Education Agency (TEA). Pursuant to the Texas Government Code, §508.318, the TDCJ and the TEA shall set forth the respective responsibilities of the department and the agency in implementing a continuing education program to increase the literacy of releasees.

(b) Objective. This memorandum of understanding is to realize a human service system that offers releasees choices and opportunities, within the realm of educational services, to remain outside prison and achieve maximum integration in the community. The following guiding principles should be considered to accomplish the objectives of this memorandum:

(1) the releasee will achieve more success outside of prison if a support system is in place to promote educational growth;

(2) the releasee may be less likely to become a repeat offender if he/she pursues education further; and

(3) the releasee must be encouraged to recognize the need for increasing his/her educational level to remain in the free world and learn to function as a productive citizen.

(c) Participation.

(1) The Texas Department of Criminal Justice (TDCJ) will:

(A) establish a continuing education system to increase literacy for releasee(s) in the Day Resource Centers;

(B) establish a system whereby the TDCJ will inform adult education cooperatives of the process and requirements for continued education of the releasee(s);

(C) provide adult education cooperatives with assessment and educational profile information that will facilitate student placement in appropriate programs;

(D) coordinate with adult education cooperatives in implementing a system for identification of student needs and barriers, student referral, outreach activities, and releasee's compliance with educational requirements;

(E) identify resources that assist local adult education cooperatives in expanding services for releasees; and

(F) participate in training necessary to develop the capacity at the local level to access and interact effectively with adult education service providers.

(2) The Texas Education Agency will:

(A) coordinate with the TDCJ to inform local parole offices of services available through the adult education cooperative system in which local school districts, junior colleges, and educational service centers provide instructional programs throughout the state;

(B) assist the TDCJ in identifying barriers to provide adult education services to released offenders;

(C) assist local adult education programs in developing the capacity to serve the released offender population;

(D) coordinate with the TDCJ in establishing a referral process between local parole offices and local adult education cooperatives whereby releasees will be referred to adult education programs;

(E) assist local adult education cooperatives in providing services to releasees in adult education programs on a first-come, first-served basis and to the extent the funds and classroom space are available;

(F) assist local adult education cooperatives in communicating and coordinating with local parole offices on prospective students awaiting referral to education programs, availability of services, identification of financial resources, and other educational programs available for released offenders;

(G) coordinate with the TDCJ in developing program objectives and collecting data to establish educational performance standards for released offenders;

(H) coordinate with the TDCJ in providing training to assist local parole officers with the coordination of adult education services to released offenders; and

(I) monitor program quality and compliance of local adult education programs serving released offenders.

(d) Terms of the memorandum of understanding. This memorandum of understanding shall be adopted by rule by each participating agency and shall be effective October 1, 1998. The memorandum may be considered for expansion, modification, or amendment at any time upon the mutual agreement of the executive officers of the named agencies.

Comments

Source Note: The provisions of this §89.1311 adopted to be effective October 1, 1998, 23 TexReg 9341.

Subchapter DD

§89.1401: Purpose

The purpose of a High School Equivalency Program approved by the commissioner of education is to prepare eligible students to take the high school equivalency examination.

Comments

Source Note: The provisions of this §89.1401 adopted to be effective April 28, 2010, 35 TexReg 3259

§89.1403: Student Eligibility

A student is eligible to participate in a High School Equivalency Program if:

(1) the student has been ordered by a court under the Code of Criminal Procedure, Article 45.054, or by the Texas Youth Commission to:

(A) participate in a preparatory class for the high school equivalency examination; or

(B) take the high school equivalency examination administered under the Texas Education Code (TEC), §7.111; or

(2) the following conditions are satisfied:

(A) the student is at least 16 years of age at the beginning of the school year or semester;

(B) the student is at risk of dropping out of school, as defined by the TEC, §29.081;

(C) the student and the student's parent, or person standing in parental relation to the student, agree in writing to the student's participation; and

(D) at least two school years have elapsed since the student first enrolled in Grade 9 and the student has accumulated less than one third of the credits required to graduate under the minimum graduation requirements of the district or school.

Comments

Source Note: The provisions of this §89.1403 adopted to be effective November 27, 2001, 26 TexReg 9620; amended to be effective May 2, 2004, 29 TexReg 3957; amended to be effective September 18, 2006, 31 TexReg 7988; amended to be effective April 28, 2010, 35 TexReg 3259

§89.1405: Application to Operate a High School Equivalency Program

(a) Applicant eligibility. Any school district or open-enrollment charter school may apply for authorization to operate a High School Equivalency Program (HSEP).

(b) Cooperative HSEP criteria. A cooperative of school districts or open-enrollment charter schools may apply for permission to operate a cooperative HSEP if it operates pursuant to a written agreement. The fiscal agent of a cooperative HSEP is responsible for complying with all requirements of this subchapter.

(c) Application process.

(1) As part of the application process, the commissioner of education will require a school district or open-enrollment charter school to provide information regarding the operation of any similar program during the preceding five years.

(2) Reported historical information disaggregated by ethnicity, age, gender, and socioeconomic status will include, but not be limited to:

(A) the total number of students served in the program;

(B) the number of program participants who passed the high school equivalency examination; and

(C) when available, information on students' subsequent attendance in postsecondary educational programs.

(3) The Texas Education Agency (TEA) will make available to eligible school districts and open-enrollment charter schools an application form that must be completed and submitted to the TEA for approval.

Comments

Source Note: The provisions of this §89.1405 adopted to be effective November 27, 2001, 26 TexReg 9620; amended to be effective May 2, 2004, 29 TexReg 3957; amended to be effective April 28, 2010, 35 TexReg 3259

§89.1407: Public Hearing

(a) The board of trustees of a school district or the governing board of an open-enrollment charter school must hold a public hearing concerning the proposed application of the district or school before applying to operate a High School Equivalency Program (HSEP).

(b) The board of trustees of a school district or the governing board of an open-enrollment charter school must hold a public hearing annually to review the performance of the HSEP.

Comments

Source Note: The provisions of this §89.1407 adopted to be effective November 27, 2001, 26 TexReg 9620

§89.1409: Assessment

(a) A student entering a High School Equivalency Program (HSEP) must take:

(1) prior to entering the program, the following assessments, as applicable:

(A) if the student first enters Grade 9 prior to the 2011-2012 school year, the student must take the Grade 9 Texas Assessment of Knowledge and Skills (TAKS) assessment in reading and mathematics; or

(B) if the student first enters Grade 9 during or after the 2011-2012 school year, the student must take the end-of-course (EOC) assessments for Algebra I and English I. Released Grade 9 TAKS assessments may be used until the applicable EOC has been released. The local school district shall be responsible for scoring the released assessment;

(2) each TAKS or EOC assessment instrument required to be administered during the period in which the student is enrolled in the program; and

(3) the assessment instruments required by this subsection before taking the high school equivalency examination.

(b) A student entering an HSEP by order of the court pursuant to the Code of Criminal Proceedings, Article 45.054, or by order of the Texas Youth Commission (TYC), is exempt from the assessment requirements specified in subsection (a) of this section.

(c) The school district or open-enrollment charter school operating an approved HSEP must present to the General Educational Development (GED) testing center, on a form provided by the Texas Education Agency, proof that a student has been administered the assessment instruments required by subsection (a) of this section. GED testing centers will not allow an HSEP student to take the high school equivalency examination without proof from the approved HSEP that the student has been administered the required assessment instruments. A student who is enrolled in an HSEP as described in this section and withdraws from the HSEP before taking the assessment instruments required by this subsection cannot take the GED until after the individual's 18th birthday.

(d) The school district or open-enrollment charter school operating an approved HSEP must inform each student who has completed the program of the time and place at which the student may take the high school equivalency examination as authorized by the TEC, §7.111. A student must be over 17 years of age or meet other requirements specified in the TEC, §7.111, to take the high school equivalency examination.

Comments

Source Note: The provisions of this §89.1409 adopted to be effective November 27, 2001, 26 TexReg 9620; amended to be effective May 2, 2004, 29 TexReg 3957; amended to be effective September 18, 2006, 31 TexReg 7988; amended to be effective April 28, 2010, 35 TexReg 3259

§89.1411: Attendance

(a) A student may attend a High School Equivalency Program (HSEP) a maximum of 600 minutes, or ten hours, of instruction per day.

(b) A student may only participate in an HSEP that is operated by the school district or open-enrollment charter school in which the student is enrolled.

(c) School districts and open-enrollment charter schools must report student HSEP attendance in a manner provided by the Texas Education Agency. The school district or open-enrollment charter school must report total contact minutes and identify excess minutes not eligible for funding purposes.

(d) A student may be enrolled in only an HSEP or may be enrolled in an HSEP in combination with regular attendance and/or special program attendance during the school day.

Comments

Source Note: The provisions of this §89.1411 adopted to be effective November 27, 2001, 26 TexReg 9620; amended to be effective April 28, 2010, 35 TexReg 3259

§89.1413: Funding Under the Texas Education Code, Chapters 41, 42, and 46

(a) For a student enrolled in only a High School Equivalency Program (HSEP), the following funding rules apply.

(1) A student is counted as in attendance based on the actual number of minutes each school day the student receives instruction in the HSEP and/or traditional classes toward graduation requirements.

(2) A student must receive instruction in the HSEP (or HSEP in combination with traditional coursework) at least 45 minutes on a given day for instructional contact time to be recorded. If actual instructional contact time in the HSEP (or HSEP in combination with traditional classes) does not equal at least 45 minutes, the district must record zero minutes of instructional contact time for that day.

(3) A log of program instructional contact time must be separately maintained for each student participating in the HSEP.

(4) During the time a student receives instruction in the HSEP, any time in attendance in courses that may be counted toward graduation credit will also be measured as instructional contact time, but must be separately recorded.

(5) The maximum number of instructional minutes allowed each school day, including any instructional time accounted for in traditional courses toward graduation requirements, is 600 minutes or ten hours.

(6) To determine attendance for Public Education Information Management System (PEIMS) reporting and Foundation School Program (FSP) funding purposes, instructional contact time recorded for the HSEP will be summed with attendance time in courses toward graduation each six-week reporting period.

(7) Instructional contact time is funded at the same rate under the FSP formulas as attendance for a full-time equivalent student. A full-time equivalent student is expected to have 1,080 contact hours per year.

(b) Attendance in an HSEP that is not authorized or does not meet the requirements of the Texas Education Code, §29.087, or this subchapter is not eligible for state funding.

Comments

Source Note: The provisions of this §89.1413 adopted to be effective November 27, 2001, 26 TexReg 9620; amended to be effective April 28, 2010, 35 TexReg 3259

§89.1415: Extracurricular Participation

Under the Texas Education Code, §29.087(g), a student enrolled in a High School Equivalency Program may not participate in a competition or activity sanctioned by the University Interscholastic League.

Comments

Source Note: The provisions of this §89.1415 adopted to be effective November 27, 2001, 26 TexReg 9620; amended to be effective April 28, 2010, 35 TexReg 3259

§89.1417: Conditions of Program Operation

(a) A school district or open-enrollment charter school operating a High School Equivalency Program (HSEP) must comply with all assurances in the program application. Approved HSEPs will be required to submit annually one progress report as instructed by the General Educational Development Testing Service (GEDTS) to the Texas Education Agency. Approved HSEPs will submit data as stated in the assurances section of the program application.

(b) A school district or open-enrollment charter school authorized by the commissioner of education on or before August 31, 2003, to operate a program in accordance with this subchapter may continue to operate that program in accordance with this section.

(c) Enrollment in an HSEP may not exceed by more than 5% the total number of students enrolled in a similar program operated by the school district or charter school during the 2000-2001 school year.

(d) A student enrolled in an HSEP must be offered at a minimum a seven-hour school day and a 180-day instructional year calendar.

(e) Beginning with the 2003-2004 school year, a student may be enrolled in an HSEP that was authorized by the commissioner on or before August 31, 2003; however, the student cannot take any portion of the GED test after September 1, 2003, without meeting the assessment requirements specified in §89.1409 of this title (relating to Assessment).

Comments

Source Note: The provisions of this §89.1417 adopted to be effective November 27, 2001, 26 TexReg 9620; amended to be effective May 2, 2004, 29 TexReg 3957; amended to be effective April 28, 2010, 35 TexReg 3259

§89.1419: Revocation of Authorization to Operate a High School Equivalency Program

(a) The commissioner of education may revoke authorization of a High School Equivalency Program (HSEP) based on the following factors:

(1) noncompliance with application assurances and/or the provisions of this subchapter;

(2) lack of program success as evidenced by progress reports, program data including factors specified in the Texas Education Code (TEC), §29.087(l), and/or on-site monitoring visits; or

(3) failure to provide accurate, timely, and complete information as required by the Texas Education Agency and specified in the TEC, §29.087, to evaluate the effectiveness of the HSEP.

(b) A revocation of an approved HSEP takes effect for the semester immediately following the date on which the revocation is issued.

(c) An HSEP is entitled to a ten-day notice of the proposed revocation and an informal review by the commissioner's designee.

(d) A decision by the commissioner to revoke the authorization of an HSEP is final and may not be appealed.

(e) The HSEP is a state program subject to a special accreditation investigation under the TEC, Chapter 39. Sanctions under the TEC, Chapter 39, may be imposed on a school district or an open-enrollment charter school for failure to comply with the HSEP requirements.

Comments

Source Note: The provisions of this §89.1419 adopted to be effective November 27, 2001, 26 TexReg 9620; amended to be effective April 28, 2010, 35 TexReg 3259

Subchapter EE

§89.1501: Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Case-managed student--A student who is assessed to be in need of Communities In Schools (CIS) services to address academic, attendance, behavior, retention, graduation, or social service needs according to the requirements in the grant application.

(2) Communities In Schools program--The statewide exemplary youth dropout prevention program authorized under the Texas Education Code (TEC), Chapter 33, Subchapter E (Communities In Schools Program).

(3) Developing program--An entity funded through the replication process for the purposes of establishing and implementing a local CIS program within a four-year period following the requirements in the grant application.

(4) Eligible student--A student at risk of dropping out of school as defined under the TEC, §33.151(4)(A)-(C), or a student who exhibits delinquent conduct as defined by the Texas Family Code, §51.03.

(5) Expansion--The process of a local CIS program establishing CIS services on a new school campus or in a new school district or expanding services to serve additional students on existing campuses, resulting in an increase of students served.

(6) Fiscal year--A one-year period beginning on September 1 of a calendar year and continuing through August 31 of the next calendar year.

(7) Local CIS program--A Communities In Schools 501(c)(3) non-profit organization established in accordance with the program model and state guidelines authorized by state law to operate for the purposes stated in paragraph (2) of this section and meeting all the requirements in the grant application for establishing a local CIS program.

(8) Replication--The process of establishing a new local CIS program in an area of the state designated by the Texas Education Agency to be an area of critical need for a local CIS program.

(9) Special initiative--The implementation of a specialized activity to address dropout prevention within the context of the CIS model.

Comments

Source Note: The provisions of this §89.1501 adopted to be effective July 4, 2005, 30 TexReg 3867; amended to be effective February 26, 2009, 34 TexReg 1237

§89.1502: Funding Prior to School Year 2009-2010

(a) Equitable funding formula. As authorized by the Texas Education Code (TEC), §33.156, the Texas Education Agency (TEA) shall establish the funding of local Communities In Schools (CIS) programs in accordance with this section. The provisions of this section apply to funding of local CIS programs prior to school year 2009-2010. Local CIS program funding beginning with school year 2009-2010 shall be in accordance with provisions established in §89.1503 of this title (relating to Funding Beginning with School Year 2009-2010).

(b) Developing programs. Developing programs shall receive a specified funding amount each year for no more than four years, including the first-year start up funding, after which time they shall become fully-developed programs and their funding shall be determined by the funding formula established under subsection (c) of this section. Prior to the expiration of four years, a developing program may request to be considered as a fully-developed program in which the funding would then be determined under subsection (c)(1)-(3) of this section if approved by the TEA.

(c) Fully-developed programs. Fully-developed programs shall receive a specified funding amount each year to be allocated as set forth in paragraphs (1)-(3) of this subsection. The TEA may choose, for the purpose of minimizing disruption in services due to changes in funding allocation, to limit the annual amount of changes in funding allocation from one biennium to the next. This may include limiting the increase or decrease from the prior year funding to an amount no less than 5.0% and no more than 25% of the change produced by this subsection and/or establishing minimum and maximum funding amounts. The TEA shall allocate an amount of funds available for distribution based on the following criteria:

(1) an equal base amount of funds, as determined by the TEA;

(2) no less than 50% nor more than 80% of the specified funding amount based on a ratio of the relative proportion of students contracted by the program relative to the total number of students contracted by all fully-developed CIS programs; and

(3) no less than 5.0% nor more than 15% of the specified funding amount on the basis of the weighted financial resources of the individual communities and school districts, if less than the state average.

(A) Weighted financial resources will be determined using the following data elements for the first year of the preceding biennium:

(i) taxable property values determined in accordance with Government Code, Chapter 403, Subchapter M, for school districts listed in each program's contract;

(ii) students in membership, as reported by the school districts and verified by the TEA, in school districts listed in each program's contract; and

(iii) the number of economically disadvantaged students, as reported by the school districts and verified by the TEA, in school districts listed in each program's contract.

(B) Weighted financial resources of individual communities and school districts will be determined by:

(i) calculating the ratio of the number of economically disadvantaged students in each district divided by the total number of economically disadvantaged students in the program;

(ii) dividing the ratio of taxable property value of the district by the number of students in membership at the district;

(iii) multiplying the ratios calculated in clauses (i) and (ii) of this subparagraph for each district; and

(iv) summing the results of clause (iii) of this subparagraph for each program.

(d) CIS program replication and expansion. For program growth, the TEA may use any one or a combination of the following methods.

(1) Replication. The TEA may determine and retain a base funding amount for replication of the CIS program in areas of the state that are not served by a participating local CIS program. Replication funds shall be made available through a competitive request for application process. First-year replication funding may be a one-time planning grant for the development of a business plan. Any funds not used for replication may be used for expansion.

(2) Expansion. The TEA may determine and retain a funding amount for expansion of the CIS program using any one or a combination of the funding methods specified in subparagraphs (A)-(D) of this paragraph. Funds allocated for expansion will become part of the funding allocation.

(A) Proportion of at-risk students served. An amount determined by the TEA may be distributed to each individual CIS program based on the relative proportion of the number of at-risk students, as defined by the TEC, §29.081, attending school districts served or new districts contracted to be served by the respective program area compared to the number of at-risk students in all districts served by CIS.

(B) Proportion of total students contracted. An amount determined by the TEA may be distributed to each individual CIS program based on a ratio of the relative proportion of students contracted by the respective program relative to the total number of students contracted by all fully-developed CIS programs.

(C) Program allocation. An amount determined by the TEA may be distributed to each individual CIS program based on the ratio of the respective individual program's total allocation relative to the total amount allocated to all fully-developed CIS programs.

(D) Competitive process. Funds may be distributed through a competitive request for application process.

(e) Other funding. Should other funding sources become available for CIS, these funds may be made available for replication, expansion, and/or special initiatives and allocated through such processes as the TEA deems appropriate, to include the funding methods described in subsection (d) of this section.

(f) Special initiatives. The TEA may partner or contract with other agencies or entities for the purpose of CIS to implement specialized activities or programs that address dropout prevention. Selection of local CIS programs for participation in the initiative may be determined by the TEA and the partner, or contractor, depending on the variables of the initiative. Local CIS programs will have the discretion of whether to participate in the special initiatives.

(g) Funding plan. Each local CIS program shall develop a funding plan which ensures that the level of service is maintained if state funding is reduced.

Comments

Source Note: The provisions of this §89.1502 adopted to be effective July 4, 2005, 30 TexReg 3867; amended to be effective February 26, 2009, 34 TexReg 1237

§89.1503: Funding Beginning with School Year 2009-2010

(a) Equitable funding formula. As authorized by the Texas Education Code (TEC), §33.156, the Texas Education Agency (TEA) shall establish the funding of local Communities In Schools (CIS) programs in accordance with this section. The provisions of this section apply to funding of local CIS programs beginning with school year 2009-2010.

(b) Developing programs.

(1) A developing program shall receive a funding amount each year for no more than four years, including the first-year start up funding.

(2) A developing program that has met all the requirements for establishing a local CIS program before the fourth year may request to be considered as a local CIS program for funding determined under subsection (c)(1)-(3) of this section if approved by the TEA.

(c) Allocation. Local CIS programs shall receive a funding amount each year to be allocated based on the following criteria:

(1) an equal base amount of funds, as determined by the TEA;

(2) no less than 50% nor more than 80% of the specified funding amount based on the relative proportion of the number of case-managed students to be served by each local CIS program to the total number of case-managed students to be served by all local CIS programs; and

(3) no less than 5.0% nor more than 15% of the specified funding amount based on the weighted financial resources of the individual communities and school districts, if less than the average financial resources of all school districts participating in the program.

(A) Data elements used for calculation of the financial resources allocation. Weighted financial resources will be determined using the following data elements for the first year of the preceding biennium:

(i) taxable property values determined in accordance with Government Code, Chapter 403, Subchapter M, for school districts listed in each program's current grant application;

(ii) weighted average daily attendance (WADA), as reported by the school districts and verified by the TEA, in school districts listed in each program's current grant application; and

(iii) the number of eligible students at the campus level, as reported by the school districts and verified by the TEA, in school districts listed in each program's current grant application.

(B) Method used for calculation of the weighted financial resources. Weighted financial resources of a local CIS program are calculated in the following way.

(i) The weighted average taxable property value per WADA (wealth per WADA) for all local CIS programs is determined by first multiplying the wealth per WADA for each district within the CIS program by the district's WADA, summing the results for all districts, and then dividing the resulting sum by the total WADA in the CIS program.

(ii) The average wealth per WADA for all CIS programs is then calculated.

(iii) A local CIS program with a below-average wealth per WADA receives weighted financial resources. The weighted financial resources for a local CIS program with a below-average wealth per WADA are calculated as follows.

(I) The weighted eligible students number is derived by dividing the eligible students number by the ratio of the local CIS program's wealth per WADA to the average program wealth per WADA.

(II) The weighted eligible students numbers for all programs with a below-average wealth per WADA are summed.

(III) The ratio of each individual program's weighted eligible students to the total weighted eligible students is applied to the total amount allocated for the financial resources allocation. This amount forms the program's financial resources allocation.

(4) The TEA may choose, for the purpose of minimizing disruption in services as a result of changes in funding allocation, to limit the annual amount of changes in funding allocation from one biennium to the next. This may include limiting the increase or decrease from the prior-year funding to an amount no more than 25% of the change produced by the provisions of this subsection and/or by establishing minimum and maximum funding amounts.

(5) If there is no increase in the funds appropriated by the General Appropriations Act for the state CIS program, the TEA may choose to maintain CIS program funding allocations at the current level.

(d) CIS program replication and expansion. Should the legislature authorize an increase in the funds appropriated for the state CIS program or should funds become available because of loss of program funding or grant revocation, the TEA may designate an amount of the increase to be reserved for replication and/or expansion.

(1) Replication. The TEA may determine and retain a funding amount for replication of the CIS program in areas of the state that are not served by a participating CIS program. Replication funds may be made available through a competitive request for application process or through any other process the TEA deems necessary. First-year replication funding may be a one-time planning grant for the development of a business plan. Any funds not used for replication may be used for expansion.

(2) Expansion. The TEA may determine and retain a funding amount for expansion of the CIS program using any one or a combination of the funding methods specified in subparagraphs (A)-(D) of this paragraph, in addition to allocation of funds in accordance with subsections (c)(1) and (c)(3) of this section. Funds allocated for expansion will become part of the funding allocation.

(A) Proportion of eligible students. An amount determined by the TEA may be distributed to each local CIS program based on the relative proportion of the number of eligible students attending school districts served by the respective program to the number of eligible students in all districts served by the CIS program. Funds provided to local programs for expansion must be used to serve the district(s) for which the program received expansion funding.

(B) Proportion of total case-managed students. An amount determined by the TEA may be distributed to each local CIS program based on the relative proportion of the number of case-managed students as identified in the current year's grant application for each local CIS program to the total number of case-managed students for all CIS programs.

(C) Program allocation. An amount determined by the TEA may be distributed to each local CIS program based on the ratio of the total amount of grant funding allocated to the local CIS program to the total amount of grant funding allocated to all local CIS programs.

(D) Competitive process. Funds may be distributed through a competitive request for application process.

(E) Decline of expansion funds. If a local CIS program declines to accept grant funds for the expansion of a program, the total amount of grant funding available for expansion will be redistributed in accordance with this paragraph among local CIS programs participating in expansion activities.

(e) Use of federal or state funds. Pursuant to the TEC, §33.154(a)(7)(C), the TEA will make available to local CIS programs and developing programs information regarding state and federal grant opportunities.

(f) Other funding. Should other funding sources become available for CIS, these funds may be made available for replication, expansion, and/or special initiatives and allocated through such processes as the TEA deems appropriate to include the funding methods in subsection (d) of this section.

(g) Special initiatives. If the TEA partners or contracts with other agencies or entities to implement special initiatives, activities, or programs that support dropout prevention efforts, local CIS programs will have the discretion of whether to participate in the special initiatives. Selection of local CIS programs for participation may be determined by the TEA and the partner, or contractor, depending on the variables of the initiative.

(h) Funding plan. Each local CIS program shall develop a funding plan that ensures that the level of service is maintained if state funding is reduced.

Comments

Source Note: The provisions of this §89.1503 adopted to be effective February 26, 2009, 34 TexReg 1237

§89.1505: Eligibility and Grant Application

(a) Applicants eligible to receive grant funds are:

(1) as specified in the Texas Education Code, §33.152, local Communities In Schools (CIS) programs established under the Texas Labor Code, Chapter 305, as it existed on August 31, 1999, and its predecessor statute, the Texas Unemployment Compensation Act (Article 5221b-9d, Vernon's Texas Civil Statutes); and

(2) developing programs as defined in §89.1501(3) of this title (relating to Definitions).

(b) A local CIS program or a developing program must submit a grant application each year in accordance with procedures established by the commissioner of education.

(c) To remain eligible for grant funding, a local CIS program or a developing program must meet all deadlines and requirements set forth in §89.1511 of this title (relating to Performance Standards and Revocation of Grant Award) and in the grant application.

Comments

Source Note: The provisions of this §89.1505 adopted to be effective February 26, 2009, 34 TexReg 1237

§89.1507: Case-Managed Students

(a) Each local Communities In Schools (CIS) program is required to serve each year a specific number of case-managed students, as defined in §89.1501(1) of this title (relating to Definitions). The specific number of case-managed students to be served will be identified in each annual grant application.

(b) Each local CIS program may be required to serve an increased number of case-managed students if the Texas Education Agency (TEA) receives an increase in the funds appropriated in the General Appropriations Act for the CIS program and/or if the performance measure related to the number of case-managed students served is increased.

(c) To determine an increase in the number of case-managed students to be served by each local CIS program, the TEA will use the number of case-managed students as determined in the current year's grant application and apply one of the following calculations:

(1) the relative proportion of the number of eligible students attending school districts served or to be served by the respective local CIS program to the number of eligible students in all districts served or to be served by all CIS programs; or

(2) the relative proportion of the specified number of case-managed students for the respective local CIS program as identified in the current year's grant application to the total number of case-managed students for all CIS programs.

Comments

Source Note: The provisions of this §89.1507 adopted to be effective February 26, 2009, 34 TexReg 1237

§89.1509: Other Provisions

(a) Pursuant to the Texas Education Code (TEC), §33.154(a)(7)(A), the Texas Education Agency (TEA) will develop an outreach plan in collaboration with the Communities In Schools (CIS) State Advisory Committee that includes outreach to local businesses.

(b) Pursuant to the TEC, §33.154(a)(7)(B), each school district that participates in a CIS program shall provide to the local CIS or developing program necessary student information and data for students whose parents have authorized in writing that educational records be shared with the CIS program and the TEA. Such information and data may include records on students' academic achievement, promotion, attendance, and assessment. A local CIS or developing program may provide this information and data to the TEA in accordance with the grant application.

Comments

Source Note: The provisions of this §89.1509 adopted to be effective February 26, 2009, 34 TexReg 1237

§89.1511: Performance Standards and Revocation of Grant Award

(a) Performance standards for a local Communities In Schools (CIS) program regarding the number of case-managed students served.

(1) A local CIS program that fails to serve the number of case-managed students indicated in its grant application by the end of the school year of any given year will receive grant funding based only on the number of case-managed students the program actually served in that given year.

(2) Following the end of a given school year (Year 1), a local CIS program that fails to serve the number of case-managed students identified in its grant application must submit to the Texas Education Agency (TEA) a letter of explanation detailing the reasons the local CIS program did not serve the number of case-managed students indicated in its grant application. Additionally, a Program Improvement Plan (PIP) detailing how the CIS program will reach the Year 1 target by the end of the second school year (Year 2) is required. The PIP must include the following:

(A) local program contact information;

(B) the number of case-managed students listed in the grant application;

(C) the actual number of case-managed students served;

(D) a list of the proposed strategies and initiatives that will be implemented to meet the case-managed student target;

(E) a list of the timelines for each proposed strategy and initiative; and

(F) a list of fiscal, logistical, and human resources to be used to meet the case-managed student target.

(3) A local CIS program that fails to meet the Year 1 target for case-managed students in Year 2 will:

(A) receive payment only for the number of case-managed students the program actually served;

(B) have its grant application modified to reflect a decreased number of case-managed students and decreased funding for Year 3; and

(C) be placed on probation for Year 3.

(4) A local CIS program placed on probation:

(A) must update its PIP to show how it will modify its program to meet the Year 3 case-managed student target; and

(B) will not qualify for any increases in grant awards. The commissioner may waive this requirement if the local CIS program fails to meet its case-managed student target as a result of circumstances, such as a natural disaster, beyond the program's control.

(5) A local CIS program that fails to meet its Year 3 case-managed student target by the end of Year 3 may have its grant award non-renewed or revoked.

(6) A local CIS program that successfully reaches its Year 3 case-managed student target at the end of Year 3 will be removed from probation.

(7) A local CIS program may have its grant award non-renewed or revoked if it fails to meet its case-managed student target as identified in the grant application for four years out of a five-year period.

(b) Performance standards for a local CIS program regarding state targets in academic achievement, attendance, behavior, dropout rates, graduation, and promotion/retention.

(1) In accordance with the Texas Education Code (TEC), §33.154(a)(2), performance standards are established for local CIS programs in the objective areas of academic achievement, attendance, behavior, dropout rates, graduation, and promotion/retention.

(2) Each local CIS program must meet the performance standards stated in its grant application each year.

(3) The TEA shall notify local CIS programs that did not meet performance standards in any objective area, within a 5.0% variance, following the end of each school year.

(4) A local CIS program that fails to meet performance standard(s) in any objective area within a 5.0% variance must submit to the TEA a letter of explanation detailing the reasons the program was unable to meet state established performance standard(s). Additionally, a PIP detailing how the CIS program will reach the performance standard by the end of the next grant year period is required. The PIP shall include the following:

(A) local program contact information;

(B) a list of the objective area(s) and the performance standard(s) as listed in the grant application;

(C) a list of the actual standard(s) met for each objective area(s);

(D) a list of the proposed strategies and initiatives that will be implemented to meet the performance standard(s) that were not met;

(E) a list of the timelines for each proposed strategy and initiative; and

(F) a list of fiscal, logistical, and human resources to be used to reach the performance standard(s).

(5) The TEA will review PIPs within 30 days of receipt.

(6) A local CIS program that fails to meet performance standards for Year 2 or two consecutive years must submit an updated PIP for approval by the TEA and will be placed on probation for Year 3.

(7) A local CIS program placed on probation:

(A) must update its PIP to show how it will modify its program to meet the Year 3 performance standards; and

(B) will not qualify for any increases in grant awards. The commissioner may waive this requirement if the local CIS program fails to meet its performance standards as a result of circumstances, such as a natural disaster, beyond the program's control.

(8) A local CIS program that fails to meet its Year 3 performance standards by the end of Year 3 may have its grant award non-renewed or revoked.

(9) A local CIS program may have its grant award non-renewed or revoked if it fails to meet its performance standards as identified in the grant application for four years out of a five-year period.

(c) Performance standards for a developing program. A developing program that does not meet the requirements for establishing a local CIS program as specified in the request for application may have its grant funding non-renewed or revoked in accordance with subsection (d) of this section.

(d) Revocation of grant award.

(1) The commissioner may deny renewal or revoke the grant award of a local CIS program based on any of the following:

(A) failure to serve the number of case-managed students identified in its grant application for three consecutive years;

(B) failure to meet performance standards within a 5.0% variance as identified in the local CIS program's grant application for three consecutive years; or

(C) consistently failing to serve the target number of case-managed students and meet the performance standards within a 5.0% variance as identified in its grant application for four years out of a five-year period.

(2) The commissioner may deny renewal or revoke the grant award of a developing program based on any of the following:

(A) non-compliance with application assurances;

(B) lack of program success as evidenced by progress reports and program data;

(C) failure to meet performance standards specified in the application; or

(D) failure to provide accurate, timely, and complete information as required by the TEA to evaluate the effectiveness of the developing program.

(3) A decision by the commissioner to deny renewal or revoke authorization of a grant award is final and may not be appealed.

(4) Revoked funds may be used for CIS program replication and/or expansion in accordance with §89.1503(d) of this title (relating to Funding Beginning with School Year 2009-2010).

(5) A program whose grant has been non-renewed or revoked is eligible to apply for replication funding in accordance with §89.1503(d) of this title after one year from the fiscal year the grant was non-renewed or revoked.

Comments

Source Note: The provisions of this §89.1511 adopted to be effective February 26, 2009, 34 TexReg 1237

Subchapter FF

§89.1601: Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Dual language immersion program--An educational approach in which students learn two languages in an instructional setting that integrates subject content presented in English and another language. Models vary depending on the amount of each language used for instruction at each grade level. The program must be based upon instruction that adds to the student's first language.

(2) Language minority student--A student who comes from a home in which a language other than English is his/her primary language.

(3) School district--For the purposes of this subchapter, the definition of a school district includes an open-enrollment charter school.

Comments

Source Note: The provisions of this §89.1601 adopted to be effective July 23, 2007, 32 TexReg 4548

§89.1603: Dual Language Immersion Program Goals

The primary goals of a dual language immersion program are:

(1) the development of fluency and literacy in English and another language for all students, paying special attention to limited English proficient (LEP) students participating in the program;

(2) the integration of English speakers and language minority students for academic instruction, in accordance with the program design and model selected by the school district board of trustees. Whenever possible, 50% of the students in a program should be dominant English speakers and 50% of the students should be native speakers of the other language at the beginning of the program;

(3) the promotion of bilingualism, biliteracy, cross-cultural awareness, and high academic achievement; and

(4) the initial preparation of students to be economically-competent, multi-literate citizens in an international community.

Comments

Source Note: The provisions of this §89.1603 adopted to be effective July 23, 2007, 32 TexReg 4548

§89.1605: Minimum Program Requirements

(a) A dual language immersion program must address all curriculum requirements specified in Chapter 74, Subchapter A, of this title (relating to Required Curriculum) to include foundation and enrichment areas.

(b) A dual language immersion program shall be a full-time program of academic instruction in English and another language.

(c) A minimum of 50% of instructional time must be provided in the language other than English.

(d) The minimum enrollment requirement of limited English proficient (LEP) students in a dual language immersion program should be the lesser of 30% of the students in the class, or all LEP students served in that grade at that campus.

(e) Program implementation should:

(1) begin at prekindergarten, kindergarten, or Grade 1, as applicable;

(2) continue without interruption incrementally through the elementary grades; and

(3) consider expansion to middle school and high school whenever possible.

(f) A school district serving LEP students in a dual language immersion program must meet the requirements stipulated in the Texas Education Code, §29.051, and Subchapter BB of this chapter (relating to Commissioner's Rules Concerning State Plan for Educating Limited English Proficient Students).

(g) A dual language immersion program shall be developmentally appropriate and based on current best practices research.

(h) A dual language immersion program shall use state-adopted instructional materials as specified in §89.1210 of this title (relating to Program Content and Design).

Comments

Source Note: The provisions of this §89.1605 adopted to be effective July 23, 2007, 32 TexReg 4548

§89.1607: Staffing and Staff Development

(a) A dual language immersion program must be staffed with certified teachers able to deliver high-level academic instruction in English as a second language and the assigned language of instruction.

(b) A school district must offer professional development programs for dual language immersion teachers that incorporate second language acquisition methods that are developmentally, affectively, linguistically, and cognitively appropriate.

Comments

Source Note: The provisions of this §89.1607 adopted to be effective July 23, 2007, 32 TexReg 4548

§89.1609: Program Implementation

(a) Student enrollment in a dual language immersion program is optional.

(b) A dual language immersion program must fully disclose candidate selection criteria and ensure that access to the program is not based on race, creed, color, religious affiliation, age, or handicapping condition.

(c) A school district must obtain written parental approval for student participation in the program sequence and model established by the district.

(d) A school district implementing a dual language immersion program must develop a policy on enrollment and continuation for students in the program. The policy must address:

(1) eligibility criteria;

(2) program purpose;

(3) grade levels in which the program will be implemented;

(4) support of program goals as stated in §89.1603 of this title (relating to Dual Language Immersion Program Goals); and

(5) expectations for students and parents.

Comments

Source Note: The provisions of this §89.1609 adopted to be effective July 23, 2007, 32 TexReg 4548

§89.1611: Standards for Evaluation

(a) A school district implementing a dual language immersion program must conduct annual formative and summative evaluations collecting a full range of data to determine program impact on student academic success.

(b) The success of a dual language immersion program is evident by students in the program demonstrating high levels of language proficiency in English and the other language and mastery of the Texas Essential Knowledge and Skills for the foundation and enrichment areas. Indicators of success may include scores on statewide student assessments in English, statewide student assessments in Spanish (if appropriate), norm-referenced standardized achievement tests in both languages, and/or language proficiency tests in both languages.

Comments

Source Note: The provisions of this §89.1611 adopted to be effective July 23, 2007, 32 TexReg 4548

§89.1613: General Standards for Recognition

(a) School district recognition. An exceptional dual language immersion program may be recognized by the local school district board of trustees using the following criteria.

(1) A school district must exceed the minimum requirements stated in §89.1605 of this title (relating to Minimum Program Requirements).

(2) A school district must be rated at least acceptable in the state accountability system.

(3) A school district must not be identified for any stage of intervention for the district's bilingual and/or English as a second language program under the performance-based monitoring system.

(4) A school district must meet the Adequate Yearly Progress participation and performance criteria for the limited English proficient student group under No Child Left Behind regulations.

(b) Student recognition. A student participating in a dual language immersion program may be recognized by the program and its local school district board of trustees using the following criteria.

(1) The student must meet or exceed statewide student assessment passing standards, as required by the Texas Education Code, §39.024, in all subject areas at the appropriate grade level.

(2) The student must meet or exceed expected levels of language proficiency on a recognized language proficiency test from the list of tests approved by the commissioner of education.

Comments

Source Note: The provisions of this §89.1613 adopted to be effective July 23, 2007, 32 TexReg 4548

Subchapter GG

§89.1701: Dropout Prevention Strategy Plan

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Compensatory education allotment--Funds allocated under the Texas Education Code (TEC), §42.152.

(2) Dropout prevention strategy plan--The document prepared for submission to the Texas Education Agency (TEA) in compliance with the TEC, §29.918, and in accordance with specifications set forth in subsection (e) of this section.

(3) High school allotment--Funds allocated under the TEC, §42.2516(b)(3).

(4) Plan to increase college enrollment--The document prepared in compliance with the TEC, §29.904, for submission to the TEA by a district ranked among the lowest 10% of districts, based on its college-going rate. A district's college-going rate is calculated as the percentage of its graduating class enrolled in higher education the fall after completing high school.

(5) School district--For the purposes of this section, the definition of school district includes an open-enrollment charter school.

(6) School improvement plan--The document prepared for submission to the TEA by a school district in compliance with the TEC, §39.1323, or by a school district with a campus rated academically unacceptable for failure to meet the required performance standards set forth in the TEC, §39.073.

(b) Identification of districts with a high dropout rate. In accordance with the TEC, §29.918(a), a school district with a high dropout rate, as defined by the commissioner of education, shall be identified and notified annually of the requirement to submit a dropout prevention strategy plan as specified by this section. The commissioner shall identify on an annual basis the school districts that are required to comply with the TEC, §29.918, and this section by grouping school districts by comparable size and then establishing a percentage of school districts with relatively high dropout rates that must submit dropout prevention strategy plans.

(c) Coordination with statutory requirement to submit a plan to increase college enrollment. If a school district is required by statute to submit both a dropout prevention strategy plan and a plan to increase college enrollment, the school district must describe in its dropout prevention strategy plan how the activities identified in both plans will be coordinated.

(d) Coordination with statutory requirement to submit a school improvement plan.

(1) If a school district is required by statute to submit both a school improvement plan due to failure to meet the required performance standard regarding dropout rates or completion rates as well as a dropout prevention strategy plan, then the school district may request that its school improvement plan be used to satisfy the requirements of both statutes. To exercise this option, a school district superintendent must submit a request in writing to the commissioner of education for approval.

(2) A school improvement plan used to satisfy the statutory requirements of both plans, as provided in paragraph (1) of this subsection, must clearly identify those programs and activities to be funded with compensatory education allotment and high school allotment funds.

(e) Dropout prevention strategy plan specifications.

(1) A school district identified as having a high dropout rate under subsection (b) of this section shall submit a dropout prevention strategy plan to the commissioner describing the manner in which it intends to use its compensatory education allocation and high school allocation funds for the purpose of developing and implementing dropout prevention strategies.

(2) A school district's dropout prevention strategy plan shall include the following components:

(A) analysis of factors that have had an impact on the school district or campus dropout rate using evaluation and needs assessment data available to the school district;

(B) description of programs and activities designed to reduce the school district and campus dropout rate to be funded in whole or in part with compensatory education allotment funds;

(C) description of programs and activities identified in §61.1093 of this title (relating to Use of Funds) designed to reduce the school district and campus dropout rate to be funded in whole or in part with high school allotment funds;

(D) quantifiable benchmarks to measure evidence of change;

(E) resources to be used in implementing programs and activities identified in subparagraphs (B) and (C) of this paragraph;

(F) timeline for initiation of activities identified in subparagraphs (B) and (C) of this paragraph; and

(G) description of how activities will be coordinated with those identified in the school district's plan to increase college enrollment, if the school district is required by the TEC, §29.904, to submit such a plan.

(3) The dropout prevention strategy plan shall include research-based programs and activities.

(f) Dropout prevention strategy plan submission. In accordance with the TEC, §29.918(a), a school district shall submit its dropout prevention strategy plan not later than December 1 of each school year preceding the school year in which the school district will receive the compensatory education allotment or high school allotment. The plan shall be submitted to the TEA in a manner determined by the commissioner.

(g) Dropout prevention strategy plan approval. In accordance with the TEC, §29.918(b), review of district dropout prevention strategy plans shall be completed by the commissioner not later than March 1 of the school year preceding the school year in which the district will receive the compensatory education allotment or high school allotment. Until a district receives commissioner approval in writing for its dropout prevention strategy plan, a district may not spend or obligate more than 25% of the district's compensatory education allotment or high school allotment funds as set forth in the TEC, §29.918(b).

(h) Sanctions. The commissioner may impose sanctions under the TEC, §39.131 or §39.1321, if the district:

(1) fails to submit its dropout prevention strategy plan by December 1;

(2) submits a dropout prevention strategy plan that fails to meet the plan specifications set forth in subsection (e) of this section; or

(3) spends or obligates compensatory education allotment or high school allotment funds in excess of 25% of the allotment amount prior to receiving approval of the dropout prevention strategy plan by the commissioner.

Comments

Source Note: The provisions of this §89.1701 adopted to be effective November 29, 2007, 32 TexReg 8500

Subchapter HH

§89.1801: Instructional Requirements for Education Services Provided in a Juvenile Residential Facility

(a) Definition. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Pre-adjudication secure detention facility--A secure facility administered by a governing board that includes construction and fixtures designed to physically restrict the movements and activities of juveniles or other individuals held in lawful custody in the facility and is used for the temporary placement of any juvenile or other individual who is accused of having committed an offense and is awaiting court action, an administrative hearing, or other transfer action.

(2) Post-adjudication secure correctional facility--A secure facility administered by a governing board or the Texas Youth Commission that includes construction and fixtures designed to physically restrict the movements and activities of the residents and is intended for the treatment and rehabilitation of youth who have been adjudicated. A post-adjudication secure correctional facility does not include any non-secure residential program operating under the authority of a juvenile board as defined by the Texas Family Code, §51.12(j).

(3) Resident--A juvenile or other individual who has been admitted into a pre-adjudication secure detention facility or a post-adjudication secure correctional facility.

(4) Residential facility--A facility as described by the Texas Education Code (TEC), §5.001(8).

(5) School district--The educational service provider in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility. For the purposes of this subchapter, the definition of school district includes open-enrollment charter school.

(b) Enrollment.

(1) The school district providing the education services in a pre-adjudication secure detention facility shall ensure that a student is enrolled in its school district or, by local agreement, in the student's locally-assigned school district on the first school day after the student's arrival at the facility unless it is confirmed that the student will return to a different district within ten school days. The school district that maintains a student's enrollment is responsible for ensuring that appropriate education services are provided to each of its students while in the facility.

(2) The school district providing the education services in a post-adjudication secure correctional facility shall ensure that a student is enrolled in its school district or, by local agreement, in the student's locally-assigned school district on the student's first school day in the facility as a court-committed juvenile.

(3) The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall coordinate with the student's previous locally-assigned campus to ensure that appropriate academic records are received within ten school days of the student's enrollment.

(c) Class size. The school district shall ensure that the classroom ratio does not exceed one certified educator to 24 students per class period.

(d) Pre-assessment. The school district shall ensure that a pre-assessment is administered to students in a post-adjudication secure correctional facility. The pre-assessment shall:

(1) be administered within ten school days from the student's first day of enrollment; and

(2) at a minimum, evaluate the student's basic reading and mathematics skills in relation to their current grade level.

(e) Curriculum of the educational program.

(1) Each school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall, at a minimum, provide students with the subjects and courses necessary to complete the minimum high school program, as specified in §74.62 of this title (relating to Minimum High School Program).

(2) Each school district in a pre-adjudication secure detention facility shall ensure that a student is provided courses that afford an opportunity of continued progress toward the completion of the minimum high school program, as specified in §74.62 of this title.

(3) Each school district in the post-adjudication secure correctional facility shall, at a minimum, provide a student curriculum that enables the student the opportunity to complete the requirements of the minimum high school program, as specified in §74.62 of this title.

(4) The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall ensure that the educational services of the students consist of curriculum that is aligned with the requirements described in the TEC, §28.002, and the Texas Essential Knowledge and Skills (TEKS).

(5) The school district in a post-adjudication secure correctional facility shall provide students, ages 15-18 and identified as appropriate candidates, the opportunity and resources to prepare for the five general educational development examinations.

(f) Award of credit. The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall grant credits for coursework completed to ensure that high school credit is awarded to students for the successful completion of required courses while enrolled in educational services at the facility.

(g) Length and number of school days required.

(1) The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall, at a minimum, provide a seven-hour school day that consists of at least five and one-half hours of required secondary curriculum to students in the facility. For each school year, each school district must operate so that the facility provides for at least 180 days of instruction for students.

(2) The school district in a pre-adjudication secure detention facility or a post-adjudication secure correctional facility shall ensure that students with disabilities are provided instructional days commensurate with those provided to students without disabilities in accordance with requirements contained in §89.1075(d) of this title (relating to General Program Requirements and Local District Procedures).

Comments

Source Note: The provisions of this §89.1801 adopted to be effective June 11, 2009, 34 TexReg 3512